PERM/Labor Certification

FREQUENTLY ASKED QUESTIONS

General

As of March 28, 2005 the U.S. government instituted the "Program Electronic Review Management" system, or PERM for short. It is a radical departure from the previous system and it is intended to dramatically expedite the processing of Labor Certification applications to reduce the long delays (currently averaging anywhere from 2 to 5 years) that we experienced under the old system. It is critically important to remember that this is a new process, with new requirements and new guidelines. It is most unfortunate that the government elected to NOT disclose the details of this program for nearly three years. As a result, we are only just now studying the new regulations. We have discovered a number of internal inconsistencies, some of which the government has already taken steps to correct. However, THERE CONTINUE TO BE MANY AREAS OF THE NEW LAW THAT APPEAR TO BE INCONSISTENT OR IN CONFLICT. This means that there is a much higher probability that cases filed "early" on will be at higher risk for denial. While this may not be critical, it will almost certainly require the applicant to re-advertise and re-apply - all of which will cost extra time and extra money. Our advice to all of our clients is to allow just a little time to pass so that we can see a pattern of how the government processes these applications and how they address problems.

Will PERM help me or hurt me?

The government claims that PERM will now allow them to process cases in 45 to 60 days. If they can keep to this promise, then PERM should benefit most applicants. PERM has created some new restrictions, but the overwhelming majority of applicants should still be able to obtain certification. One area of concern still remains regarding the right of the officer to reject an application of the officer believes that "a U.S. worker could be trained to do the job in a reasonable period of time." Considering how unreasonable some of the denials have been in the past, many of us are not comforted by the broad sweep of power this now grants, and we are all watching closely to see how this authority is exercised.

How quickly can we file?

Unlike the old system that had you file first and then test the market later, PERM calls for the applicant to test the job market before applying. The rules as they are currently written call of a series of steps that must be taken to test the market, and these steps must be taken over a period of not more than 6 months, but not less than 30 days. There are certain steps that are required for ALL jobs, and then some additional steps that apply only to more advanced "professional" positions. In order to prevent people from using old data, the tests must be no older than 6 months. However, to prevent people from claiming to test the market immediately before they file, some steps must be taken at least 30 before filing, and other steps must be taken within 30 days of filing.

I already have a pending Labor Certification. What will happen to that application?

One of the prime factors that motivated the government to take create PERM was a survey that certified a backlog of over 330,000, that was growing larger with every passing day! Many of the delays in the old system occurred at the State level, where the cases were first filed. Part of the process to establish PERM was the creation of a separate program to address the staggering backlog that had grown up under the old system. There are now 2 "Backlog Reduction Centers," one in Philadelphia, and one in Dallas. Both are dedicated to clearing out all of the existing cases. In an effort to treat all applicants equally, the government has announced that it will process all cases based on priority (filing) dates, with the oldest cases being worked on first. This operates to the disadvantage of those applicants who were in states (such as Massachusetts) where the applications had been processed far ahead of other states, a significant number of whom are still processing cases that were filed during the month of April, 2001!

The government will begin sending notices to all persons with pending cases and will ask them to re-affirm their desire to process the case. Failure to respond to these notices within 30 days will result in the dismissal of the case. It is imperative that anyone receiving such a notice contact Watson Law Offices immediately to insure that no case is improperly dismissed.

Will my pending case prevent me from filing under PERM?

No. However, if you do file under PERM, in most cases you will be required to withdraw your pending Labor Certification. There are a number of potentially serious problems with this approach, which is why we are telling all clients with existing Labor Certification cases to NOT file under PERM until we can be sure that they will not give up a critical benefit. One of the key benefits that clients have with a pending Labor Certification case is the fact that once the case has been pending for 365 days, we can request and receive unlimited extensions of H-1B status, in one year increments. If we withdraw the old Labor Certification to file under PERM, we will no longer have a basis to request such an extension. Thus, you may find that you have an approved Labor Certification under PERM, but you may not be able to stay in the U.S. to process your green card because of a shortage of immigrant visas.

What do you mean by a shortage of Immigrant Visas?

Under our present system, there are only 120,000 employment based immigrant visas allocated each year. When you deduct the 10,000 visas already set aside for Employment Based Preference 3-C (lesser skilled) jobs, this leaves only 110,000. When you also consider that most applicants are not single, and that each dependant / family member will take one of these visas, it becomes clear that in the very near future - as the currently backlogged Labor Certification cases move through the system there will be long backlogs for immigrant visas.

What if I file now under PERM to avoid the backlog?

If you have a pending / backlogged Labor Certification, then that carries a "Priority Date" that is the day the application was accepted for filing. If you file NOW for PERM, you will be required to withdraw that pending case. If you then re-file under PERM, and your PERM application is approved, then you will be able to "capture" or retain your priority date. This could be very important, because it is your priority date that will determine whether an immigrant visa is available to you. The biggest concern that many of us have is what will happen if your PERM application is denied - for any reason? You will risk losing your priority date that may prove critical to you in the future. For anyone who has a case currently pending for Labor Certification that was filed by Watson Law Offices, there is little doubt that if you stay with the existing application, you will be assured of (eventually) getting your green card. However, it is also possible that re-filing your application under PERM will result in getting a green card faster. The desire to do this must be balanced against the risk of processing under a completely new system, and the additional cost that will be required to comply with the new advertising requirements set up by the PERM regulations.

If I have already filed for Labor Certification, why can't we use that for PERM?

Under the old system, advanced advertising was only done for Reduction In Recruitment (RIR) cases. Traditionally filed cases did not begin advertisement until after a Case Number was assigned. Also, the advertisements that were drafted under the traditional system would appear to be far too detailed for the current guidelines set forth in PERM and would in all probability be rejected as being too restrictive.

I really want my green card quickly. Can't we just take a chance and go ahead and file?

We can. However, for those people who already have a Labor Certification pending, this could be a very costly "roll of the dice." If you have a pending Labor Certification case, as outlined above, you will be protected in terms of being able to extend your status, and you will preserve your priority date, which could become invaluable if immigrant visas begin to "backlog." There are a number of differences between PERM and the old system. One key difference is that under the old system, before a case would be denied, the applicant would receive a detailed statement of reasons why the government was intending to deny the case, and it would also contain options to "cure" the "defects" that the government felt existed in your case. Under PERM, there are only 3 options: Approve; Deny; or Refer for Investigation. As a consequence, the government has advised us that the are very likely to deny cases for purely "technical" reasons. Another change in the process under PERM is that if a case is denied, you can refile immediately. However, what is not clear is what will happen to prior advertising, and there appears to be no system to advise us as to how we might identify and correct whatever it might have been that caused them to deny the application. While it may only be a small "technical" problem, if you don't know what the problem is, you will have difficulty trying to correct it.