PERM was supposed to help employers speed up permanent residency applications for foreign workers. It allows employers to submit an Application for Permanent Employment Certification directly with the Department of Labor (DOL) to reduce labor certification times. Although PERM improved approval times in some cases, it also created backlogs and resulted in many denials for de minimis errors, all of which place unfair burdens on employers.
Seeking labor certification from the DOL is the first step for an employer looking to sponsor a qualified foreign worker for a green card. Before the Department of Homeland Security (DHS) and the Department of State (DOS) may issue visas and admit individuals to work permanently in the U.S., the DOL must certify that “(a) there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of application in the place where the individual is to perform the work, and that (b) the employment of the individual will not adversely affect the wages and working conditions of similarly employed U.S. workers.”
Starting in March 2005, employers seeking to hire foreign workers could file ETA Form 9089 online or by mail directly with the DOL. Assuming there was no DOL audit, approval was supposed to occur within 60 days, a big improvement for employers and employees.
Unfortunately, that hasn’t been the case. One of the main problems with the system is that electronic processing is very unforgiving. Any errors, even innocent typos, can’t be corrected and can be grounds for denial. The only option in such cases is to withdraw and refile a new form, but that only works if the advertising, recruiting and prevailing wage determination are still valid and within the prescribed time limits. The PERM application must be filed within 180 days of the beginning of the advertising and recruitment process. If the application is denied after the 180 day period, the employer has to undergo expensive advertising and recruiting again before refiling.
Too often we’ve seen small errors, like incorrect dates and typos, result in denials and the employer having to start all over again because they fell outside the 180 day period. In addition, the PERM form itself has created difficulties for employers. Confusing and unclear instructions have been problematic for the last 10 years. Some instructions for filling out the form are on the form itself while others are published separately on the DOL website. For example, we’ve had trouble determining where to include specific information about the worker’s licenses and understanding the requirements and procedures for advertising and recruiting online. DOL’s solution was to issue FAQs, which are an additional layer of material for the employer to decipher.
As a result of these issues with the PERM process and other criticisms, the DOL announced it will be initiating a review of the PERM program and relevant regulations. As part of this review, DOL is seeking input on the following:
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
- Ranges of case processing timeframes and possibilities for premium processing; and
- Application submission and review process and feasibility for efficiently addressing nonmaterial errors.
DOL stated its intention to modernize the program to make it more responsive to changes in the national workforce and enhance the integrity of the labor certification process. (Click here to read the DOL release.) We hope that’s the case. As it stands now, approval times for unaudited forms are at around 7 months. For audited applications, it takes over 15 months, which is well beyond the 180 day period.
In the meantime, the best course of action is to have experienced legal staff handle these applications to ensure there are no errors. Starting over to fix a mistake is an expensive and time-consuming remedy that no employer wants to undertake.