As you know PERM (an acronym for Program Electronic Review Management) is the new labor certification program that went into effect just a few months ago. Obtaining a labor certification is the first step in obtaining permanent residency in the United States through a job offer.
PERM completely replaces all prior labor certification programs. Applications filed before the effective date of perm are still being processed, but they are being transferred to Backlog Reduction Centers for processing. Just before PERM’s effective date, DOL received approximately 40,000 applications from employers who, apparently, did not want their cases processed under PERM. However, we have advised some of our clients to observe how well PERM is operating for a few months before deciding to file. The Department of Labor (DOL) has indicated that an application filed under PERM can be approved in as little as 45 – 60 days which is a huge improvement over the previous program (RIR) which took up to two years or more. However, “talk is cheap” as they say and, despite what DOL promises, we are all curious about how well PERM is REALLY going to work. It’s still too early to tell, but now that we are a few months into the program we do have some additional information to share with you.
We have been hearing anecdotally that DOL is considering charging a filing fee for the application. DOL has now officially stated that it is seeking filing fees for PERM with the purpose being to recoup operating costs. DOL intends the fee to start at the beginning of the 2006 fiscal year. We don’t know yet how much the filing fee will be.
Once a PERM application is filed, DOL is performing a “sponsorship check” which involves an email sent to the employer only - not the attorney - asking four questions of the employer. The questions are:
- Are you, or do you work for, the employer referenced above?
- Are you aware that an Application for Permanent Employment Certification was filed on your behalf?
- Do you have an opening for a (job title) in (location)?
- Are you sponsoring (worker’s name) for this position?
Failure to respond promptly to these questions will result in a phone call from DOL on which a DOL representative will ask the four questions. The employer’s contact person must be able to take the call and communicate in English.
We have raised our concerns with DOL about omitting the attorney from this part of the process. However, DOL indicates their approach relates to “program concerns.” In other words, DOL wants to ensure that the application is filed by a legitimate employer with a legitimate job offer and, considering the unfortunate history of unscrupulous attorneys filing fraudulent applications, we do not believe DOL will include the attorney in this part of the process anytime soon.
Some of the problems we have seen with this procedure are that the employer’s contact person is sometimes unable to communicate well in English. We have tried to remedy this by ensuring the contact person listed on the application is, whenever possible, fluent in English. Another problem we have seen is that DOL uses its own job title when discussing the position and not the employer’s job title. This, obviously, can cause confusion. We have tried to remedy this by informing the employer that DOL will be conducting this investigation and letting the employer know what job title DOL will use.
Problems like this are to be expected as DOL learns to administer a completely new program. We will continue to communicate with DOL as this “learning process” continues and will keep all of you informed of any additional developments. We are still very excited about the potential benefits PERM represents and will continue to work with DOL to ensure that the program operates smoothly and effectively for everyone involved.
