PERM: More Questions than Answers



The March 28 start of the Program Electronic Review Management (PERM) has been greeted with more questions than answers.

PERM is the Department of Labor (DOL)'s new electronic process for filing and processing labor certification applications for permanent employment-based immigration. The new PERM system is intended to help streamline the permanent labor certification system and thus combat the current labor certification backlog. One of the main questions raised by PERM is what happens to labor certification applications filed before PERM began.

 PERM regulations allow employers to keep their current priority dates if they withdraw their original labor certification applications and re-file "identical" applications through PERM. While refiling through PERM may mean a relatively rapid adjudication, many lawyers and employers are reluctant to do so. Cases filed before PERM may not comply with PERM regulations, and changing an application to make it so would disqualify the case from keeping the old priority date. An alternative would be to keep the old labor certification and concurrently apply for a labor certification through PERM. However, PERM regulations do not specify if employers can do this. Cases that have yet to be adjudicated through the old labor certification system, which number over 200,000, have been sent to backlog reduction centers in Dallas and Philadelphia.

The DOL estimates that it may take over two years to adjudicate all of these cases. Another question lingering after the implementation of PERM is how to determine the prevailing wage for employees. The DOL recently issued instructions for prevailing wage determinations, outlining a four-tiered system to match an employee's training and experience with their compensation. The previous DOL system only had two levels. Further, the DOL has pointed to its electronic job zone determination system, O*NET, as a source of information for wage determinations. However, the rules governing new prevailing wage determinations are ambiguous and sometimes erroneous.

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