Overhaul of employment-based immigration

Major overhaul of employment-based immigration to go into effect at end of this month!

Attention Employers: On March 28, 2005, a new system of rules known as PERM will go into effect for obtaining certification by the Department of Labor. Such certification is normally required as the first step in the permanent residence application process based upon a job offer.

Summary of PERM’s major changes from the old labor certification application rules

  • The Basic Process:An Application for Permanent Employment Certification will now be made on the new Form ETA 9089, either electronically or by mail. No filing fee will be required and no supporting documentation will be filed. Instead, the employer must maintain all supporting documentation in the event an audit is required or documents are requested.
  • Timing:The goal for decisions on electronically filed applications is 45-60 days.
  • Prevailing Wage:100% of the prevailing wage will be required to be paid, calibrated along a spectrum of four skill/experience levels. The prevailing wage must be obtained prior to filing the application
  • Pre-filing Recruitment Required of Employer:
    • Posting of notice of the job opening for at least 10 consecutive business days between 180 and 30 days before filing.
    • Use of any and all other in-house media in accordance with normal procedures used for recruitment for similar positions in the organization.
    • Placement of a job order with the State Workforce Agency
    • Placement of two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment more than 30 days but less than 180 days before filing.
    • Three additional recruitment steps are required for professional jobs
    • Preparation and retention of a detailed recruitment report documenting why no qualified, able and available U.S. workers were found to do the job through the required recruitment process.
  • Re-filing for “identical job opportunity”:Pending applications under the old rules can be withdrawn and re-filed under PERM only where there is an identical job opportunity and before the State Workforce Agency has placed a job order. The rules are very strict with regard to what is meant by “identical” to the point that even a change of address of the employer defeats the “identical” requirement.
  • Audits, Approval or Denial: Once the application is on file, the Department of Labor can request an audit of additional documentation including a detailed recruitment report. The Department of Labor will then either approve or deny the application. The employer can then undertake a Request for Review, or file a new labor certification application.

The PERM regulations are new and untested and will be the subject of ongoing guidance memoranda for years to come.

Article categories: Employer-Based Immigration Law

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