The U.S. Department of Labor’s (DOL) electronic permanent labor certification system (PERM) as we know it has been in existence for the past 10 years. This year, the Office of Foreign Labor Certification (OFLC) is expected to publish new regulations aiming to modernize the current PERM program to better meet the needs and practices of employers. The OFLC has expressed a desire to see the final regulation published before the end of President Barack Obama’s term, meaning action on the proposed rule would need to happen soon—potentially by the end of summer. Although the OFLC has not issued the proposed regulations for public comment yet, the listening session conducted by the OFLC with stakeholders in 2015 gives us insight into possible changes.
As background for those unfamiliar with the PERM program, if an employer wants to sponsor an employee for permanent residency in the United States, the DOL must first certify a labor application. PERM is the electronic system for completing the permanent labor certification process with the DOL. When an employer files a PERM application using Form 9089, the employer attests that there are no minimally qualified U.S. workers to fill the position. To prove this, the employer must recruit for the position prior to filing the application.
Social Media Recruiting
One of the modernizations to the PERM program that is most obviously needed is to expand the list of acceptable forms of recruitment to include social media. Under the current PERM regulations, there are two forms of mandatory recruitment: (1) placement of a job order with the applicable state workforce agency for 30 days, and (2) the publication of two Sunday newspaper ads. The employer must also conduct three other forms of recruitment from the following options: job fairs, the employer’s website, external job search websites, on-campus recruiting, trade or professional organizations, private employment firms, employee referral programs with incentives, campus placement offices, local and ethnic newspapers, and radio and television ads.
But technologies tend to change far more rapidly than federal statutes, and the PERM regulations’ mandatory recruitment methods are outdated. For one thing, one of the most popular forms of advertisement—social media—is not currently an acceptable form of recruitment. Moreover, one of the two forms of mandatory recruitment—newspaper advertising—is very uncommon in our digital world. The upcoming changes to the regulations should allow the PERM process to adapt with advancements in technology by allowing new forms of recruitment without requiring employers to wait for the regulations to be rewritten.
“Normal” Occupational Requirements
We also anticipate that the OFLC will change how it evaluates “normal” occupational requirements. Currently, the DOL assigns an education and experience requirement for each job based on information from the Occupational Information Network (O*NET). O*NET data is updated through ongoing surveys of the occupation’s worker population and occupation experts. These are then interpreted as the “normal” requirements of the job. However, employers have voiced concern that these determinations are inaccurate in the real world.
Where an employer requires more education or experience than the level deemed “normal” by the DOL, the employer must justify the business necessity of these requirements. In addition to posing an additional documentary burden on employers, the step of justifying the business necessity of additional education or experience requirements also subjects employers to the risk that the DOL may find that the requirements are not “normal” for the position and tailored to the alien, which could result in denial of the case. The new regulations could give the DOL more flexibility in interpreting what “normal” requirements are and when a business necessity justification must be provided.
Form 9089 Corrections
Another expected change deals with corrections to the actual Form 9089 after filing. The current regulations do not permit any changes to the PERM application once it is submitted. This has been interpreted strictly to prevent changes even in the case of a “harmless error,” such as a typographical or date error. Therefore, PERM applications must be without error, because any slight error could result in a denial. This draconian bright-line rule has been the subject of one of the most common complaints about the PERM program. We now expect to see a change allowing for corrections of these errors after filing.
Finally, the OFLC is seeking the statutory authority to charge a fee for processing PERM applications. This would not be part of the regulations and is instead included in a budget proposal. The OFLC is currently funded by congressional appropriations. Although the number of PERM application filings has increased, the OFLC has not received any increased funding. The proposed fee would offset this imbalance, permitting the DOL to maintain current processing times. If granted fee authority, the OFLC could implement an option for expedited processing. This would be similar to “premium processing” with the U.S. Citizenship and Immigration Services. Although it would be an added cost, it would be a welcome addition for employers since they could avoid issues, such as employees running out of time on their nonimmigrant visas and dependent children aging out.
These modernizations are needed to bring the PERM program in line with current employment trends and practices. As the next step in the process, the DOL will publish a notice of proposed rulemaking (NPRM) in the Federal Register and will specify a period of time (typically ranging from 30 to 60 days) for public comment.
by Ann Louise Brown (Greenville)
Compliments of Ogletree, Deakins, Nash, Smoak & Steward, P.C – a member of the EACCNY