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The U.S. Department of Labor may soon implement radical changes to routine green card processing through its proposed PERM -� Program Electronic Review Management -� process for labor certification applications. Although publication of the final PERM regulations likely will be delayed until late spring or summer, employers should review staffing needs, anticipate the new guidelines and make strategic immigration decisions today. Labor certification is a Department of Labor (DOL) process to protect U.S. workers. Foreign nationals normally can get an employment-based green card only if their employers follow specific DOL procedures for testing the labor market. The employer must confirm that it could not find a U.S. worker who is able, willing, qualified and available for the prospective position offered the foreign national. Although certain immigration categories enable foreign nationals to obtain a green card without labor certification, these cover a minority of cases. Today, two processes exist for getting labor certification: traditional/basic processing and reduction in recruitment (RIR). In Texas, applications must pass through the Texas Workforce Commission before reaching the DOL regional office in Dallas. Processing times usually range from two to four or more years. Facing record backlogs, on May 6, 2002, DOL published the proposed PERM rule. This plan recommended replacing the existing adjudicatory labor certification process with a new system that would rely on 1. employer attestations submitted online to provide a factual basis for prompt DOL review and approval; and 2. the threat of random and targeted compliance audits to ensure good-faith representations and thorough recordkeeping by employers. Employers welcomed the possibility of speedy adjudications of labor certification applications. Yet the proposed tradeoff for speed was a higher qualification threshold. Proposed restrictions would limit the ability to file cases. Although the final rule may substantially alter certain of the proposed restrictions, employers should consider some key possibilities now: * Increased recruitment for U.S. workers. The proposed rule would increase the employer’s mandatory recruitment activity. Among other provisions, additional print advertisements with increased specificity (and hence cost) would adhere to more exact timing requirements. In addition, employers sponsoring foreign nationals for professional positions requiring a bachelor’s degree or higher education would be required to document three other recruitment vehicles including, for instance, job fairs, Web sites or employment agencies. Job orders through state workforce agencies also would be mandatory. * Reduced position requirements. Employers may not reject U.S. workers simply because they are less qualified than the foreign national. Under existing rules, employers must set forth the minimum requirements and evaluate U.S. workers only on that basis. The foreign national must satisfy all minimum requirements before assuming the job and frequently before hire by the employer. In practice, employers often are forced to understate the minimum requirements they truly seek, owing to the DOL rule prohibiting employers from requiring any skill the foreign national gained through on-the-job training. Two principal exceptions exist. The first is when the foreign national is trained on the job but changed circumstances render it infeasible to offer comparable training to a U.S. worker. More common is a showing that the beneficiary gained experience with the same employer but in a role that is substantially dissimilar from the job offered. PERM would eliminate these two exceptions, thereby reducing the opportunity for employers to set forth bona fide requirements. As a result, in certain cases PERM deprives qualified foreign nationals of the opportunity for a green card while leaving the employer without a truly qualified replacement. * Reduced discretion to determine who is minimally qualified. Under PERM, an employer might not be able to reject a U.S. worker lacking a critical required skill if the applicant could acquire the skill in a reasonable period of on-the-job training. The proposed standard appears vague and subject to interpretation, which employers hope would not moot their documented requirements. * Restrictions on business necessity. Current practice allows a job requirement to deviate from normal industry standards when employers document a business necessity justification. PERM would impose restrictions on this common practice. For example, a firm with a Hispanic client base might need Spanish-speaking attorneys. Under PERM, the firm would have an added burden to justify the Spanish-language requirement. * Increased documentation, audits and sanctions. PERM efficiency would result from processing applications submitted online directly to DOL. The technology would enhance speed and convert the process from one of adjudication to a superficial check of the form’s readability and completeness. In the normal course, employers would not submit any backup documentation of recruitment, results or basis for rejecting U.S worker applicants. Detailed recordkeeping would be critical, however, as DOL would pursue random and targeted audits. Employers who fail to submit comprehensive back-up documentation regarding all aspects of the filing would be deemed to have made a material misrepresentation and all their applications for the subsequent two-year period would require in-depth DOL supervised recruitment. Strategy Implications Although the exact date of PERM’s publication is unclear, it is likely that DOL will issue the final rule by summer 2004. As of presstime, the regulation is under review at the Office of Management and Budget. It is important to recognize the final PERM regulation may differ substantially from the May 2002 proposal, although exactly how is a matter for speculation. Anticipating the possibility of PERM and the increased difficulties of processing labor certification applications, employers should consider now whether there is any benefit to filing traditional or RIR labor certifications for their foreign national employee groups. As noted above, PERM may eliminate the possibility of traditional or RIR filings. Employers could undertake a case-by-case analysis to assess whether there is a chance that a labor certification filed under the traditional process may succeed when it reaches recruitment, which in Texas might be several years away. Moreover, employers who ruled out RIR in the past might consider whether the improved economy opened any RIR options � for example, in positions requiring higher skills and more experience that are harder for employers to fill with local recruitment efforts. As noted, PERM advertising requirements will differ from existing RIR advertising requirements. If an employer’s counsel can anticipate the new PERM requirements, the employer may be able to take advantage of expedited PERM processing without the costs of advertising again. Those who fail to plan ahead and make strategic decisions now may be stuck rushing to file cases or be unable to file at all after the DOL implements PERM. Ethan Kaufman is a member in and manages the Dallas office of Fragomen, Del Rey, Bernsen & Loewy. Fragomen is the largest firm in the country dedicated to immigration and nationality law.

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