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The Department of Labor (DOL) on May 6, 2002 published a Notice of Proposed Rulemaking in the Federal Register for a revamped labor certification program. The proposed rule would amend the agency’s regulations governing the filing and processing of labor certification applications for permanent employment in the U.S. The new program, called PERM, was proposed with the goal of creating a more streamlined system for certifying that there are no U.S. workers able, willing, and qualified to fill a permanent position that is being offered to a foreign national.

Under current regulations, employers file for a labor certification through the “traditional” method or through “reduction in recruitment” (RIR) filing. PERM was designed to eliminate the traditional labor certification process and create one process for labor certifications that is based primarily on the current procedures for RIR filing. According to the proposed rule, once the application was completed and the recruitment period ended, the employer would have to file an application with the regional DOL office (without including any supporting documentation of the unavailability of U.S. workers). The application would then be entered into a computer system that checks for completeness, and whether there is information, such as a wage offered that is below the prevailing wage for the position, that “flags” the application for additional examination. DOL would select these “flags” that indicate “problematic” applications needing supervised recruitment or audit. In order to test the system, certain applications would be randomly audited. If no “flags” were hit, certification of the attestation could be expected in as little as 21 days.

Considering the extensive backlogs with the traditional labor certification process and even backlogs in the RIR labor certifications, DOL anticipates that if PERM is implemented, employers will seek to refile labor certifications under PERM. Refiling without the loss of the original filing date would be allowed as long as the new application described an identical job opportunity, and the employer complied with all the requirements for recruitment called for under PERM and withdrew the application pending under either the traditional or RIR application process.

The DOL expects to publish an interim rule implementing a PERM labor certification process in April-July timeframe. The automated system that will process the actual PERM labor certifications may not be ready until October 2003. Thus the publication date will not be the same as the effective date. PERM’s effective date will be the same as the date the DOL’s automated processing system is in effect.

Although PERM makes positive steps towards creating an improved framework to process labor certifications quickly and reduce application backlogs, the proposed regulations also contain provisions which eliminate employers’ ability to obtain labor certifications for occupations that are currently being approved by the DOL.

The Law Offices of James E. Root can be reached at 5757 Wilshire Blvd., Suite 520, Los Angeles, CA 90036. (323) 456-7600.

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