PROPOSED RULES FOR THE PERM PROGRAM

 

The Department of Labor (DOL) has published major changes to the existing Labor Certification process in a proposed rule. The main purpose, of-course, is to reduce the average time needed to process labor certifications and eliminate the huge current backlog. The basic structure of the program is based on the requirement that all applications will now be pre-advertised, and not only those done under the existing RIR process.

 

A brief summary follows:

 

  1. Recruitment must be conducted prior to the filing of the applications with an Employment and Training Administration application processing center on application forms (machine readable and newly numbered ETA 9089 and ETA 9088) that are designed for automated processing and screening.
  2. Before filing these application forms, the employer would be required to fill in a Prevailing Wage Determination Request (ETA 9088), and also a job description and job requirements, to a State Workforce Agency (SWA and formerly the State Employment Security Agencies or SESA) to determine the prevailing wage.
  3. The SWA is required to evaluate the employer’s job offer as per the stated duties, requirements, geographic area etc and then arrive at a prevailing wage determination. Thus SWA’s would no longer play any role in the recruitment process, as they are in the present system.
  4. This pre-filed recruitment would consist of both mandatory and alternative recruitment steps to be followed by the employer.
  5. The alternative steps may be chosen by the employer from a list set out in the regulations.
  6. No documentation need be submitted with the application. However the employer is expected to assemble all the required supporting documents and will be required to provide them in the event of being selected for an audit.
  7. The automated processing system at an ETA application processing center, would review the applications and identify any shortcomings which would require further audit before a determination can be made.
  8. In addition and as a quality control measure, some applications would be randomly selected for further audit, without regard to the automated computer analysis.
  9. An application selected for audit will require the employer to provide all documentation to verify the facts stated in the application. Upon receipt of this the application and documents will be distributed to the appropriate ETA regional office where the Regional Certifying Officer will review it.
  10. The Certifying Officer can certify the application, deny the application or order supervised recruitment.
  11. The criteria for adjudication will still be based on the same factors; whether there are insufficient able, willing and qualified workers available and whether the alien’s employment will have an adverse effect on the wages and working conditions of US workers similarly employed.
  12. The supervised recruitment is similar to the current non-RIR regulations, except that it will be supervised by the ETA and not the SWA (formerly SESA).
  13. All denials may be subject to administrative-judicial review by the Board of Alien Labor Certification Appeals (BALCA.)
  14. If an application is not denied or selected for audit it is anticipated that under the new rules the application will be certified and returned to the employer in an unbelievably short period of just 21 days!

 

The above points enumerate the basic procedural changes to the LC process that have been suggested by the new rule.  There are several other important changes such as the elimination of the existing ‘business necessity’ standard, a distinction between professional and non-professional occupations and the different recruitment requirements for each, changes in definitions of terms used, inclusion of aliens of exceptional ability in the performing arts in ‘Schedule A’ occupations and elimination of ‘Schedule B’. These and other important changes will be discussed in further detail in other articles.

 

The regulations are not yet in effect and will undergo a 60-day comment period following publication in the Federal Register. The Department of Labor (DOL) then will review and consider the comments before issuing final regulations. There is also bound to be some delay in making all the necessary technological advances required before the new procedure can be implemented.

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between The Law Offices of Cyrus S Nallaseth and the viewer.