PERM: Program Electronic Review Management Labor Certification

Labor certification, formerly the most common process through which foreign workers could obtain permanent residence in the United States (i.e., the green card), has now been replaced by a new program known as "PERM" (Program Electronic Review Management). Through this new program, the U.S. Department of Labor's intent is to create a faster and more consistent labor certification process.

PERM regulations were published December 27, 2004, and became effective March 28, 2005. Through this program, the Department of Labor has promised enable quick and streamlined labor certification approvals. Prior to PERM's introduction, the labor certification process had grown in some jurisdictions to a wait of five years or longer, and procedures varied widely from jurisdiction to jurisdiction, making the program unpredictable and cumbersome.

The PERM program is now still in its very early stages, and how it will work in practice remains to be seen.

Application Process

PERM applications may be submitted online or by mail. No supporting documentation is required with the new application form, which is very detailed. However, the Department of Labor (DOL) reserves the right to audit an employer's file to ensure compliance with all filing and record-keeping requirements.

Filing Requirements

Prior to filing a PERM application, an employer and/or its legal representative must do the following:

• Prevailing Wage Determination (PWD): The employer must obtain PWD from local State Workforce Agency (SWA) in advance of filing PERM. The salary offered must meet or exceed the prevailing wage determination.
• Posting Notice: The employer must post a notice of the job opportunity offered for at least 10 consecutive business days on the premises and in any in-house media in accordance with normal procedures used in recruitment for similar positions.
• Job Order: The employer must place a job order with the State Workforce Agency for a period of 30 days.
• Advertisements: An advertisement must be placed in two different Sunday editions of a newspaper of general circulation in the area of intended employment. For professional positions requiring experience and an advanced degree, the employer has the option of placing the second advertisement in a professional journal.
• Additional Recruitment for Professionals: For professional positions at least three additional recruitment steps must take place, including (1) job fairs; (2) employer's website; (3) job search website other than employer; (4) on campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) an employee referral program if it includes identifiable incentives; (8) notice of job opening at campus placement office if the job requires a degree but no experience; (9) local and ethnic newspapers as appropriate; (10) radio and television advertisements.
• Recruitment Report: The employer must prepare a recruitment report describing the minimum steps taken for recruitment along with the results.

Record-Keeping/Retention of Documentation

Documents must be retained for five years from the date an application is filed.

Previously Filed/Pending Labor Certification Applications

As part of the program to eliminate the backlog of pending labor certification applications, the DOL has set up backlog reduction centers (BRCs). However, the DOL has also provided a procedure for refiling pending cases into the new PERM system. "Conversion" of a case to PERM means withdrawal and refiling and is only available for "identical" job opportunities. For this reason as well as the fact that this system remains untested, we urge extreme caution with "conversion" of regular labor certifications to the PERM system.

The refiling procedure requires all recruitment steps above. A variety of other factors should be considered before electing to refile, however, including estimated processing time for pending cases relative to that for new cases under PERM, expense of preparing a new application, and past and future recruitment.