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NEWS HEADLINES
FASTER Permanent Residency through Employment!
Sherryl S. Pond, Esq.
THE PROMISE OF PERM: New Rules for Immigrating through Employment
On December 27, the U.S. Department of Labor (DOL) published regulations in the Federal Register which will introduce a new expedited form of alien labor certification entitled PERM. PERM is the "Program Electronic Review Management" system. These regulations will become effective on March 28, 2005. The purpose of the new system is to eliminate the current years-long backlog of labor certification cases pending before the DOL and to prevent future backlogs.
The new regulations create a system where advertising is done up front, prior to filing any applications with either the Department of Labor or the Immigration Service. The advertising is done in either three or five different media, depending on the type of case, which is prescribed by the new rules. The application is then filed (and may be done electronically) without documentation. The case is certified within 45 to 60 days if it meets the requirements, although the actual advertisements, postings, etc. will not be submitted. Rather, they will be kept on file for the required period of time.
This new system is similar to the tax-filing system, where the DOL, like the IRS, may decide to audit the application at the time it is submitted or at a later date, even after the I-140 is approved.
If you are an employer or an employee who has filed one or more of the 300,000+ applications for labor certification which are currently pending, can these pending applications be changed to PERM without losing their priority dates? Yes, if you do so within 210 days after withdrawing your labor certification application, and you meet the following three conditions: (1) no job order has been placed with the SWA; (2) the job offer is identical; and (3) you meet all PERM-related recruitment and advertising requirements. The advantages and disadvantages in withdrawing and re-filing should be carefully considered with your attorney before a decision is made.
There is no processing fee at the Department of Labor stage, and the regulations do not specify what the penalties will be for failure to comply with PERM. Penalties will be enumerated in a subsequent regulation. If DOL denies a labor certification, the employer may appeal. DOL may, instead of denying an application, order supervised recruitment for the job opportunity.
PERM may be one answer to the shortage of H-1B and H-2B visa numbers, as PERM promises that permanent residency may be achieved in a substantially shorter period of time. Time will tell whether we can expect this processing time to become and remain at less than one year.
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