The new PERM labor certification program was inaugurated by the U.S. Department of Labor on March 28, 2005.  The new program speeds up the labor certification process by providing for both electronic filing and filing by paper.  With just a short time in existence, technical and regulatory issues are still being worked out.

In order to obtain a green card through labor certification, one must have an employer who is willing to offer a job, and one must show that there is a shortage of U.S. workers who are able, willing and qualified to perform the job. Certain occupations designated by the Department of Labor, such as physical therapists and nurses are pre-certified.

The job must be offered only with requirements which are the actual minimum necessary to perform the job satisfactorily. The job requirements cannot be tailored to fit the alien’s qualifications, and the criteria must be objective and not subjective.

New regulations provide that  job must be offered at 100% of the prevailing wage. However, the new system also provides for four levels of wages, depending upon the experience and level of supervision the job requries. The job offer must be for a permanent, full-time position.

The employer must run at least two Sunday advertisements, and must obtain a prevailing wage determination from the state labor department, as well as place a job order with the state labor department for 30 days. Additionally, the employer must post a job notice in the place of employment, and on any company in-house media, for at least ten business days.   For professional-level positions, at least three other forms of recruitment are required.

The employer must interview any applicants who appear qualified for the job, and have job-related reasons for rejecting any U.S. workers.

Once it is filed, the labor certification application is reviewed by computer, which determines if there are any problems with the application. If no problems or issues are found, the labor certification application could be approved within a short time. However, if any problems or issues are found, the application may be quickly denied.  Or, the employer could be audited, and have to produce evidence of the recruitment, such as all resumes, letters to the applicants, and proof that they were interviewed, etc.

An employer who either fails to respond to an audit, or fails to provide proof of bona fide efforts to find a U.S. worker for the position, the employer may be penalized.  Additionally, an approved labor certification may be revoked by U.S. Department of Labor, U.S.C.I.S. or the State Department upon a finding of fraud or misrepresentation.  The employer will have 30 days to rebut the finding.

All old cases, including traditional labor certifications and Reduction in Recruitment (RIR) applications, have been transferred to one of two Backlog Reduction Centers.  The Backlog Reduction Centers are in the process of contacting employers to see if they still want to pursue the old application, by sending what are called “45-day letters”, because the employers have 45 days to respond.

The new regulations also provide for conversion of old labor certification applications to the new PERM system, in order to retain the old priority date.  However, the new PERM application must be identical to the old application, aside from the wage

For professionals approaching their sixth year of H-1B status, it may be risky to try to convert an old application to a PERM, because if the application is denied, and they have no labor certification application which has been pending for more than 365 days, they will not be able to obtain extensions past the sixth year..

Priority workers do not require labor certification

Priority workers, including aliens of extraordinary ability, outstanding professors and researchers and multinational executives and managers, are not required to go through the labor certification process. They may apply directly to INS for an employment-based visa and permanent residency.