Changes Are Afoot: Modernization is coming to the permanent labor certification program

Friday, July 1, 2016 - 14:48

As a prelude to my column this month, please allow me to thank Metropolitan Corporate Counsel and all of you who have read my column over the past six years. I am retiring at the end of July. It has been a pleasure.

Employers are likely to soon see changes to the permanent labor certification program, otherwise known as PERM (Program Electronic Review Management). The Department of Labor’s permanent labor certification process is a critical step that many employers must complete in order to sponsor foreign national employees for permanent residency. In many instances, obtaining a certified labor certification from the DOL is a prerequisite to submitting an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS) on behalf of an employee. This past fiscal year, employers submitted over 70,000 PERM applications, and the majority of sponsored jobs were for professional occupations in information technology and science.

The underlying purpose behind the DOL’s PERM program is the protection of U.S. jobs and workers. Regulations mandate that employers conduct a good faith recruitment campaign to test the labor market for available U.S. workers before obtaining labor certification. This labor market test needs to confirm that the recruitment campaign did not yield a qualified, available and willing U.S. worker for the sponsored role. Thus, the test seeks to ensure that U.S. workers will not be adversely impacted due to an offer of permanent employment to a foreign national beneficiary.

The Office of Management and Budget (OMB) is expected to soon complete its review of a draft regulation regarding the modernization of the PERM program, which the DOL submitted on March 9, 2016. The proposal, which is currently confidential, is reportedly based in part on feedback received from employers and business immigration stakeholders. Updates to the PERM program have been long anticipated by employers and employees alike, many of whom view the process of obtaining permanent labor certification under the current regulations as lengthy, complex and burdensome. The PERM program was implemented in March 2005, and since that time, no further revisions have been enacted in order to account for the modem-day labor market and recruitment practices.

DOL officials have commented that they expect the PERM modernization regulation to be finalized and implemented before the sunset of the Obama administration in January 2017. There is much speculation about what new changes the potential regulation could bring. Overwhelmingly, immigration practitioners and stakeholders agree that several anticipated changes likely to emerge will make the PERM process more stringent while also providing some accommodations for businesses.

One expected substantive change to the program will be updates to the PERM advertising requirements. The updates will probably allow for methods of recruitment that are more consistent with current business practices. While an objective of the good faith labor market test is to mirror real-world recruitment practices, under current regulatory requirements, this is often difficult to achieve. For example, current regulations mandate that many employers advertise for the sponsored role in Sunday newspapers of general circulation. Apart from being costly to employers, in today’s age, it is likely that these ads do not accurately target the U.S. workforce.

Additionally, the current PERM process is unforgiving for nonmaterial errors, which can ultimately lead to denials over simple administrative mistakes. Moreover, current regulations make it challenging for employers to sponsor individuals who began their careers with the employer – and who may be especially valuable to their workforce. Therefore, anticipated changes might provide a process for employers to correct harmless errors in pending PERM applications, as well as allow foreign national employees to qualify for offered positions based on experience gained with the sponsoring employer.

There is a strong likelihood that the primary reform will be the introduction of a filing fee structure. Currently, there are no filing fees associated with the PERM process, so fees could materialize in the form of a filing fee for the PERM application and/or the prevailing wage request, which is a necessary component of the larger PERM process. The agency could also be considering the possibility of fee-based expedited case processing. Currently, premium processing is widely used by employers at subsequent stages of the green card process with USCIS, but it is not currently offered by the DOL. The introduction of a fee structure would also allow the Office of Foreign Labor Certification to hire more personnel, which in turn would enable faster processing, as well as an upgrade of existing information technology systems.

Once the proposed rule is published, employers will have the opportunity to provide feedback during a public comment period, which is typically 30 to 60 days long. Modernizing and updating the labor certification process will hopefully benefit the DOL and employers alike, as predicted updates would likely streamline the PERM process significantly. PERM modernization could provide the DOL with an opportunity to regulate around the Board of Alien Labor Certification Appeals’ administrative decisions. In our view, the anticipated updates to the 11-year-old PERM program will be consistent with the protectionism spirit of the statute, and of the mission of the DOL, whose longstanding purpose in this arena is to strengthen safeguards for the U.S. workforce.

Brianna Pomatico, associate; Rio Gonzalez, law clerk; and Nancy Morowitz, counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, visit http://www.fragomen.com.

Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office.

You can reach the author at mpatrick@fragomen.com with questions about the article.