Although I will cover a great number of topics, please do note that this is not a discussion of every provision. Furthermore, only time will tell how the process will work. Right now, all we have is a roadmap with the expectations of how the Department of Labor thinks this will work. Whether the process works as planned and how all its many facets will be interpreted is something that we will only know over time.

Before discussing the specifics, I have to commend the Department of Labor. DOL took great care in reading the comments to the proposed regulations and adjusting the final regulations as they deemed appropriate. No, DOL did not listen to everything those of us who represent employers and foreign nationals would like to have seen. It is easy to point to shortcomings in the PERM process, but the reality is that on balance, I believe the program is reasonable and logical. I am sure that many people would disagree but my opinion is based upon an objective view of the program and the Department of Labor's legal obligations under existing laws. At least those are my first impressions but as the saying goes, the devil is in the details. Only time will tell whether PERM is better than the existing process.

EFFECTIVE DATE:

PERM petitions can be filed on or after March 28th, 2005. Many people mistakenly believe that PERM will be optional. That is a mistaken assumption. As of March 28th, 2005, the vast majority of permanent residence applications that require labor certifications must be processed through PERM (there are some minor exceptions for professional athletes, sheepherders and others.)

The only option is that individuals who are ready to file their labor certifications between now and March 28th may opt to either wait for PERM or file under RIR or the regular process BEFORE March 28th. At the end of this article, I will discuss issues that may affect a person's decision to file prior to PERM as well as issues to be considered by those who already have a pending labor certification but who are considering to convert the process to PERM.

HOW LONG WILL A PERM PETITION TAKE TO BE PROCESSED:

This is one of the questions that we have heard most often. The Department of Labor expects that a PERM petition will be processed within 45 to 60 days. I honestly do not know whether the Department of Labor will be able to honor this kind of processing time but there is precedent for successful implementation of expedited processes at the Department of Labor. Those of you who have been involved with immigration for a long time should remember that the Labor Condition Application that is used with the H-1B used to take weeks to process and today it only takes a few minutes to process it.

On the other hand, do take note that the Department of Labor has not promised, nor is it legally required, to process a petition within the 45-60 day estimated time. More importantly, petitions will be audited randomly as well as for discretionary reasons.

What does the Department of Labor mean by audits? The PERM process requires that the employer complete the recruitment steps prior to filing the petition but it does not require that supporting documentation including copies of advertisements, internal postings and recruitment reports be filed with the petition. A petitioner simply files the form either via mail or electronically.

For obvious reasons, the Department of Labor will be conducting random audits to ensure that the employer has really undertaken all the recruitment steps necessary for the process as well as to verify that there weren't any available and qualified American workers. Likewise, depending on the information contained in the application, the Department of Labor may at its discretion audit the petition.

Therefore, audits present an opportunity for the processing times to be derailed. The regulations do require that the employer respond to an audit request within 30 days - and there is discretion to extend that period for another 30 days - but the regulations do NOT require that the Department of Labor come to a final determination within a specific amount of time.

We hope that the Department of Labor will work expeditiously to complete adjudication of audited petitions but at this time we have no idea how long the audits may take. We also do not know what percentage of cases may end up being audited nor do we know whether the Regional offices will be adequately staffed to conduct review of audited petitions.

Beyond the audits, the Certifying Officer will have the power to order supervised recruitment in cases where he/she is not satisfied with the audit results. Moreover, as is the case with the current Reduction in Recruitment, the Department of Labor retains the ability to order supervised recruitment in situations where they believe that market conditions indicate that there are enough qualified American workers (think the IT industry in 1999 and 2000.) Therefore, as is currently the case with RIR, there is always the possibility that the Department of Labor will require supervised recruitment. In supervised recruitment cases, we have absolutely no idea how long it will take a supervised recruitment petition to be processed.

Here I would like to emphasize that one of the purposes of PERM is to make the process faster, more efficient and less labor intensive for the Department of Labor. Therefore, logic would dictate that all and all, the process will be faster, especially for those petitions that are not chosen for audit, but it is way too early to tell how much faster the process will be.

NECESSARY RECRUITMENT:

Prior to filing a PERM petition, the employer will have to conclude a number of very specific steps:

• Two ads in the Sunday paper. The ads will need to have the name of the employer, they will have to sufficiently describe the position to apprise U.S. workers of the job opportunity, they will need to indicate where the job is located, and if travel is required, the ads must so indicate. One significant improvement of the final regulations over the proposed regulations is that the advertisements may, but need not, mention the offered salary. A job located in a suburban area must be advertised in the metropolitan area's newspaper and jobs in rural areas with no Sunday editions must advertise in the newspaper of general circulation in the area of intended employment but need not advertise on a Sunday due to the lack of opportunity to do so.
• The employer must open a job order with the State Workforce Agency for a period of 30 days. For those of you unfamiliar with the State Workforce Agencies, these are state offices that serve as resources to employers, employed workers seeking jobs and unemployed workers seeking jobs;
• As is the case under the current process, the employer must provide notice of the job opportunity to the Union representative if there is a Union. Otherwise, the position must be internally posted for a period of 10 business days. There is also a requirement that the position be displayed in all in-house media where positions are normally displayed (intranet, company newsletters, etc.) To be honest, my colleagues and I are still confused on this requirement because we do not know how long these other in-house media notices must be displayed.

If the position is a professional position, then the employer must also take at least three additional recruitment steps as described below (One Sunday ad can be replaced for an advertisement in a professional journal if advertising in that medium is normal to the profession and the job requires a Masters degree and experience.) In order to determine whether a position is "professional," and therefore subject to the additional recruitment steps, the regulations contain an appendix of positions that are considered to be professional. If the position is on the list, the additional steps apply. If the position is not on the list, only the recruitment steps described above apply.

It is important to note that the additional recruitment steps differ insofar as they only require that the occupation be the subject of the recruitment, not the specific job. For example, if the position is a Chemical Engineering position in Orlando, FL, the two Sunday advertisements would need to appear in the Orlando Sentinel, they would have to sufficiently describe the position and specify that the position is located in Orlando. The additional recruitment steps need to specify that the opening(s) are for Chemical Engineers but they need not be as specific in terms of description and location as is the case with the Sunday advertisements. This will greatly help larger national and regional companies that already undertake ongoing recruitment in various media.

The three additional recruitment steps that an employer must complete in professional positions are to be chosen from the following list:

• Job fairs;
• Employer's website;
• Internet advertisements, job-search engines, etc. (Note that in our example above, if the employer also advertises the Chemical Engineering position in the online version of the Orlando Sentinel, this counts as an Internet advertisement - it was not always so);
• On Campus Recruitment Fairs;
• College/University Placement offices - note that here we have a discrepancy between the comments accompanying the regulations and the text of the regulations. The regulations themselves do not place any limitations on placement offices but the accompanying comments state that placement offices are only an option for entry-level positions. I honestly question this because alumni of universities and colleges often use their placement office as a resource. So do members of the community (employers and job-seekers.)
• Trade or professional journals;
• Employee referral programs with incentives;
• Private job search firms;
• Local or ethnic newspapers if appropriate;
• Television and radio.

There is one additional recruitment step for all jobs, professional and non-professional. If the employer has laid off workers in the occupation for which labor certification is sought, or a similar occupation, the employer must be ready to provide evidence that it offered the positions to the laid off workers prior to proceeding with the PERM labor certification.

TIMING OF THE RECRUITMENT EFFORTS:

Here is an area where employers and foreign employees may save time. Under the current regime of labor certification, the Department of Labor requires that the efforts for Reduction in Recruitment be spread over the 6 month period prior to filing the petition. Under PERM, the recruitment efforts cannot be less than 30 days old but no more than 180 days old. In other words, it is possible to accomplish all of the recruitment steps within a much shorter amount of time without the need to wait for a full 6 months before a petition can be filed.

PREVAILING WAGES:

For discussion purposes, we are consolidating the issue of prevailing wages as touched upon by PERM as well as the recent modifications made to existing law by the Omnibus Appropriations Bill signed by the President during the month of December.

The bad news is that as of March 8th, there will not be a 95% margin for error with prevailing wages for either labor certifications or H-1B petitions. As most of you know, under current law, an employer is required to pay at least 95% of the prevailing wages or the actual wage, whichever is highest.

The good news is that the new law provides a formula in order to create a four-tiered prevailing wage in situations where the government provided survey only provides two levels of compensation. As most of you know, the official government provided prevailing wage survey is the Occupational Employment Statistics "OES Survey" and it only provides two levels of compensation. That has been a particularly troublesome area for employers, foreign employees and their immigration attorneys. The new formula provides four levels by allowing employers to divide by three the difference between the two levels, adding the quotient to the first level to create the second level and subtracting the quotient from the existing second level to create the third level. It is quite possible that the good folks at the Bureau of Labor Statistics may do this for us in the coming weeks. If they do not, we will be able to apply the formula ourselves.

The other piece of good news in the prevailing wage area is that the Department of Labor has liberalized the use of alternative surveys by acknowledging the validity of surveys that are based upon both mean and median data as well as those surveys that only contain one level of compensation so long as the surveys are based upon sound statistical data.

These added sources of prevailing wages should work to ameliorate problems under the existing regime. Prevailing wages will be extremely important because the employer MUST seek a prevailing wage determination from the state office prior to filing the labor certification under PERM. The state offices will have the discretion to approve the prevailing wage for a validity of 90 days to a full year. I believe that it is crucial that employers establish the prevailing wage with the state agency prior to spending any money on recruitment efforts. Also note that a prevailing wage determination must be sought for each petition that is filed.

Note that as of March 28th, prevailing wage determinations will be required for Schedule A occupations as well. That means that petitions for Registered Nurses, Physical Therapists and Aliens of Exceptional Ability will also be required. This is a substantial change from the current procedure.

RECRUITMENT REPORT:

As mentioned at the outset, the PERM process will not require that any supporting documentation be filed with the Department of Labor. However, the employer needs to have all the required documentation on hand, including the recruitment report, in case the Department of Labor decides to conduct an audit.

The recruitment report must be signed by the person who normally considers applicants, it must describe number of hired applicants, the recruitment steps undertaken and it must categorize the reasons for rejecting applicants. The employer need not name each applicant for the job but it must have all necessary documentation on hand in case of an audit. Note that PERM will make it more difficult for employers because they need to track the responses to each open position. Under current law, the Department of Labor has been accepting very generalized recruitment reports but that will not be the case under PERM.

PROBLEM AREAS:

As stated at the outset, I believe that in general the process is fair and it is driven by a genuine desire to make the process more expeditious without sacrificing the Department of Labor's legal mandate to protect the labor market for American workers. That being said, there are a number of potentially troublesome areas:

• we have no idea how long audited petitions will take to process;
• we do not know how long it will take to process supervised recruitment petitions;
• we are required to obtain prevailing wages from the State Workforce Agencies but there is no guidance as to how long it will take State Workforce Agencies to provide prevailing wage determinations. This poses the threat of backlogs in certain states prior to filing petitions;
• a U.S. worker is deemed to be qualified if he/she can obtain a skill during a reasonable amount of time. Granted, under current law the DOL could make that type of determination but it is now being codified and it is not known how DOL will really interpret this provision;
• the amount of time and experience that the DOL considers to be the norm for someone to become proficient in a given occupation has been reduced for approximately 37 occupations;
• a labor certification can be revoked at any time if its approval was not "justified." In other words, based upon the language of the regulations, the Department of Labor has the power of revoking a petition for an indeterminate amount of time into the future;
• the employer must keep all supporting documentation (ads, postings, resumes, recruitment reports) for a period of five years following the approval of the labor certification. Note the discrepancy: the petition may be revoked at any time but the employer must only keep supporting documentation for 5 years. Foreign employees would be wise to keep their own copies safely tucked away with their important papers.

CONVERSION OF EXISTING PETITION TO PERM:

Current non-RIR petitions can be converted into PERM so long as a job order and recruitment instructions have not been issued. RIR petitions may be converted to PERM prior to adjudications. In all cases, two things must happen to convert to PERM: (1) all requirements of PERM must be met; and, (2) the old petition must be withdrawn.

In reference to the last point above, keep in mind that what we call a "conversion" is really a term of art. In reality, an old petition is withdrawn, re-filed and the Department of Labor will enable the individual to retain the priority date of the original petition.

In order to convert to PERM, the position must be identical or it will be considered a new petition and the priority date will not be retained. My understanding is that the only variance that will be allowed by the Department of Labor concerns the offered wage to reflect the correct prevailing wage at the time of filing of the PERM petition. However, there can be absolutely no changes in the amount of experience required, the amount of education required, the location of the job, the employer or the job duties.

TO CONVERT OR NOT TO CONVERT:

Despite the Department of Labor's assertions to the contrary, PERM will no doubt make the labor certification process more expensive, particularly for professional occupations. If you currently have a pending RIR petition, one of the factors to be studied is whether you, or perhaps your employer, want to bear the additional cost of re-filing. Your employer may want to weigh whether they want to recruit for the position again because it will entail some work on their part even if you pay for the necessary recruitment efforts.

Before deciding whether to convert is worth it or not, there are other factors that you need to verify to make an adequate determination:

• how far is your RIR from being approved?
• is your position one of the positions for which the Department of Labor will not accept as much education and/or experience as before? If it is, you may do well to just hold onto the process that you have;
• how strong is your RIR application?

If you have a regular petition pending, chances are that you may benefit from converting to PERM so long as your employer is in agreement. That being said, you and your attorney will still need to look at the factors above. Frankly, there may be situations where PERM may be more likely to bring forth qualified applicants.

To those of you who are currently recruiting for RIR, I would suggest taking a careful at the situation because it is likely that you can easily take some recruitment steps that will let you file under PERM on March 28th. If you are from a country facing backlogs of priority dates, you may want to file now under the regular process or RIR to secure a little earlier priority date and then convert to PERM.

The bottom line is that there is no single set of criteria that will let you determine whether filing now or later, converting or not converting, is appropriate. That is why a careful study of your situation, your company, the labor market for your type of job where your job is located and other factors must be undertaken before you dive in head first into PERM.

I will be attending a presentation about PERM by the Department of Labor during the week of the 10th of January and I will also be attending AILA's midyear conference during the week of the 17th of January. I will pass on any helpful information that I learn to our readers, and of course, to my clients.

For all our firm's clients who are currently in the RIR recruitment stage, as well as those who already have petitions pending, I am currently reviewing every single application to evaluate how PERM might help or hinder each person.