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On Dec. 27, 2004, the U.S. Department of Labor (DOL) published final rules that will dramatically change the labor certification application system — the process by which a U.S. employer sponsors a foreign national employee for U.S. permanent residence or “Green Card” status, proving to the DOL that it is unable to find a willing, able and qualified U.S. worker to fill the job offered to the foreign national, and that employing the foreign national will not adversely affect the wages and working conditions of U.S. workers similarly employed. The new regulations are published in the Federal Register at Vol. 69, No. 247, at 77325-77421 (20 C.F.R. 655-656). The rules will take effect on March 28. This discussion will highlight and distinguish the new rules — known as the Program Electronic Review Management (PERM) program — from the current labor certification application processing system and provide guidance to employers on factors to consider when deciding whether to quickly file a labor certification application for a foreign national employee under the current system or to wait until the PERM program takes effect in March. An employer’s filing of a labor certification application is the first of three steps in obtaining employment-based U.S. permanent residence for a foreign national employee. It is important to note that the filing of a labor certification application does not require a current employment relationship with a foreign national because the application is based on a bona fide prospective job offer. Thus it is possible to file a labor certification application on behalf of a future foreign national employee who is currently employed elsewhere in the United States, or who is currently residing abroad. Also noteworthy is that certain foreign nationals, such as those with “extraordinary ability” in their field or multinational executives and managers, are exempt from the labor certification process when pursuing U.S. permanent residency. For those not so fortunate to be able to avoid the labor certification process, only after the DOL has approved a labor certification application can an employer file an immigrant visa petition for the foreign national employee with the Citizenship and Immigration Services (CIS) (step 2), and can the foreign national employee file an adjustment of status application with the CIS (or an immigrant visa application with a U.S. consulate abroad) (step 3) to finally obtain the Green Card based on a U.S. job offer. Much to the relief of American businesses that truly do rely on foreign talent to fill certain positions for which they cannot find qualified, able and willing U.S. workers, the final PERM regulations do not include many of the highly restrictive rules promulgated in the proposed regulations, which were published three years ago. DOL carefully listened to both large and small businesses as they finalized the changes, and apparently has taken precautions to make sure that the new program will run smoothly upon implementation. Certainly the foreign national employees are thrilled with DOL’s promise that PERM labor certification applications will be adjudicated in 45 to 60 days, as opposed to the current three to four years. DOL will permit those employers and foreign national employees with pending applications to convert to a PERM application, and most foreign national employees are clamoring to do so. Yet there are provisions within PERM that should give pause to both employers and foreign national employees, as there is no doubt that parts of the current system are far more beneficial than PERM, and only applications filed with DOL before March 28 may take advantage of the current regulations. HOW THE PROCESS WILL CHANGE There are four major differences between the current labor certification process and PERM, and these must be evaluated now for those foreign national employees who have not yet filed a labor certification application, and by those who have filed but are considering converting their application to PERM. For many (but not all), these four differences could mean a reduced chance of an application being certified by DOL. No more blind ads. U.S. employers need to make bona fide efforts to recruit U.S. workers to fill a position before DOL will certify that there are no qualified, willing and able U.S. workers available. Under the current system, the employer may advertise the job in newspapers or professional journals without disclosing the employer’s name. PERM requires the employer to conduct both “mandatory” and “additional” recruitment during the six-month period preceding the filing of the labor certification application, and all advertisements must state the employer’s name. Not requiring the employer to include its identity in advertisements is perhaps the single most beneficial feature (to the employer and the foreign national employee) of filing applications under the current system because it inevitably serves to reduce the applicant pool. The PERM program recruitment includes placing a job order with the state work force agency (SWA) serving the area of intended employment and two advertisements in the Sunday edition of a newspaper of general circulation appropriate for the occupation in the area of intended employment. If the job requires experience and an advanced degree, then the employer may place one advertisement in a professional journal in lieu of one Sunday advertisement. Mandatory recruitment must be conducted at least 30 days, but no more than 180 days, before the application is filed. The PERM program also includes three additional employer-selected recruitment steps from among commonly used professional channels such as job fairs, the employer’s Web site, other job search Web sites, on-campus recruiting, trade or professional organizations and private employment agencies. In addition to the above-described recruitment efforts, PERM retains the requirement for the employer to post an internal notice of job opening for 10 business days, but adds a requirement that the notice also be published in any and all in-house media, whether electronic or printed, if such media are normally used to post such job openings. With the employer’s name and Web site information disclosed in all of these recruitment efforts, more r�sum�s from potentially qualified U.S. workers will undoubtedly be received. Expanded definition of a qualified U.S. worker. Under the current system, a U.S. applicant is not qualified for a job if he or she does not meet the education, experience and special requirements listed on the labor certification application. Under the PERM program, the employer must consider U.S. applicants even if they do not meet all the stated special requirements. The PERM program considers a U.S. applicant qualified for a job if he or she can acquire, during a “reasonable period of on-the-job training,” the skills necessary to perform the job duties. DOL does not define “reasonable period,” and employers may be loath to sign the labor certification application if a U.S. applicant shows up during the recruitment process who truly can be trained to do the job offered within a short time of hire-especially if other employees at the company were trained quickly. Higher wages required. Under the PERM program, the employer must now offer 100 percent of the prevailing wage; no longer is 95 percent of prevailing wage acceptable. This may not seem so harsh, but there are employers that stretch their budgets just to meet the 95 percentwage and that will not agree to sponsor a foreign national employee at this higher wage requirement. On the positive side for employers, the PERM rules mandate that DOL’s official wage survey now offer four occupational levels as opposed to the current two, which will result in more realistic prevailing wages. There is one caveat, however: It is still unclear how to determine the appropriate occupational level for a given job. For example, will a software engineer with a bachelor’s degree and three years of experience be considered by the DOL as a Level II or a Level III wage? The difference between these levels could mean a prevailing wage differential of thousands of dollars. If the employer does not agree with DOL’s wage survey, the employer may continue to submit an alternative survey or other wage data for the SWA to consider as long as the alternative data meet specific survey methodology criteria. Limited use of experience gained with sponsoring employer. Under the current system, an employee’s experience gained with the employer in a “different job” can be used to qualify the employee for the job offer. For example, an employee’s three years of specialized experience as software engineer with the employer may qualify him for the employer’s senior software engineer job, as long as the two jobs meet DOL’s vague and liberally interpreted different job test. DOL’s proposed PERM rules completely prohibited a foreign national employee from using any experience gained with the sponsoring employer to qualify for the job offered in the labor certification application. This would have been disastrous for American businesses because disallowing the employee’s experience gained with the employer to qualify him for the job offer would have severely undermined an employer’s ability to reward and keep valued foreign national employees, and to benefit from its training investment in these employees. Fortunately for employers, the final regulations do not include this harsh proposal. Under the PERM program, the different job test is more clearly defined: Experience gained with the same employer must not be “substantially comparable” to the job for which the certification is being sought. PERM states “a substantially comparable job or position means a job or position requiring performance of the same duties more than 50% of the time.” In the software engineer example above, the employer now needs to go beyond the rhetoric of the job description and give a substantive analysis of each job duty in both positions. If no clear distinction in job duties can be made, and if the employee has no other prior experience with another employer, then this is a situation that warrants immediate consideration for the filing of a labor certification application under the current rules, prior to the March 28 PERM implementation date. PRACTICAL CONSIDERATIONS Under the PERM program, employers will be allowed to withdraw a pending labor certification application filed under the current system and to refile the application for the identical job under the PERM program without loss of the “priority date,” the date the labor certification application was originally received by the SWA. This is especially important to foreign national employees from China, India and the Philippines, as they may have to wait in a lengthy queue, which is determined by the priority date, before they can proceed to step 3 in the Green Card process. Therefore, it is critical to be certain that the new PERM application offers the identical job opportunity as the original labor certification application before a substitution is requested, because if the DOL later determines that it does not, the priority date will be lost. The PERM regulations state that an identical job opportunity means the exact same employer, foreign worker, job title, job location and job description. PERM also requires employers to notify and consider for the job offered in the labor certification application all former employees who held the same or a similar position but who were laid off in the six-month period prior to filing. It is interesting to note a few provisions of the proposed regulations that were removed prior to publication of the final regulations: a labor certification application filing fee (though this may still come); a requirement affirmatively to seek out and offer the job in the labor certification application to all U.S. workers recently laid off from a similar job in the same geographic region, even if they worked for a different employer; the elimination of all special requirements and business-necessity requirements that are not “normal” to the occupation, which would have forced the employer to recruit only for a generic job regardless of particular needs; and, as discussed above, a complete bar on using any experience gained with the sponsoring employer to qualify for the job offered in the labor certification application. Foreign national employees are pleased with what was left out of the final regulations, but they and their employers should not assume that PERM is all good news. Jeffrey W. Goldman is chairman of the immigration practice group at Boston’s Testa, Hurwitz & Thibeault. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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