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PERM - Finally Here!!! PDF Print E-mail
Written by Lorenzo M. Lleras   
Tuesday, 28 December 2004
As many of you know, the long-awaited PERM regulations have been released. We are still going through the regulations and all the comments to fully understand how the process is going to work. My first impression of what I have read is that he Department of Labor did take great care to consider the comments received after they published the proposed regulations over two years ago. Here are some of the highlights of the final regulations:
  • The estimated processing time for a labor certification that is not chosen for an audit is 45 to 60 days;
  • The PERM labor certifications can only be filed via mail or electronically (there is no option for facsimile filing;)
  • There will be a 90 day transition period through March 28th, 2005. In other words, from today through that date, we will still be able to file regular and RIR applications under the existing law. Any petition filed after that date MUST conform with PERM;
  • The salary will not have to be specified in the advertisements;
  • The name of the sponsoring company WILL have to be specified in the advertisements;
  • The existing legal standards for requiring foreign languages and requirements that arise out of business necessity will continue under PERM;
  • There will NOT be a two-tier process for employers that file a large volume of petitions and the rest of the public – everybody will have to comply with the same requirements;
  • Experience gained with the sponsor may still be used for petitions under very limited circumstances;
  • The final regulations DO retain the provision stating that employers will not be able to reject workers who lack a specific skill if that skill can be acquired during a “reasonable” time. In my opinion, this is where the most litigation is going to occur, particularly with IT occupations. There is no clear definition of what a “reasonable” time might be to learn a skill nor is there clear guidance as to when a worker is merely lacking a skill versus not being qualified at all.

As stated above, I will be preparing a much more detailed and in-depth article concerning the regulations. For those of you who want to read them, here is the link to the Federal Register: http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=33608916788+0+0+0&WAISaction=retrieve

 
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