The Department of Labor (DOL) has taken a first step in the PERM Modernization Project, mandated by the President’s Executive Action on Immigration announced on November 20, 2015. On January 22, 2015, the DOL will hold a “Public Listening Session” from 4:30-5:30 PM, EST. The session is by telephone and in person and is open to the public. Registration instructions for the event, can be found here.
PERM is the acronym that refers to the labor certification process that many employers must go through in order to sponsor a foreign national employee for legal permanent residence. During the PERM process, the employer must undertake a set of DOL prescribed recruitment steps to demonstrate that there is no American worker who is ready willing or able to fill the position, that they foreign national employee is filling.
The PERM process is notoriously difficult for the DOL’s lack of forgiveness for any mistake or typographical error no matter how unintentional or small. For example, an obvious typo on the application form of a date of a particular recruitment step is likely to cause a denial of the application, but only after DOL has had the application in process for over 12 months and the employer has spent thousands of dollars on required newspaper print ads. Because there is no way in the DOL PERM process to correct the mistake, the employer and the employee must start over from the beginning.
Immigration advocates hope that the PERM modernization project will address issues such as the inability of employers to correct obvious errors, the use of outdated and expensive modes of recruitment, such as newspaper print ads. Currently there is no application fee for a PERM application, but the project requires the DOL to consider a “premium processing fee” to speed up application processing. A program to fast track certain PERM applications is long overdue, as a PERM approval is often the key to eligibility for extensions of a foreign national’s H-1B status beyond the 6 year minimum. This type of benefit, would assist employers in keeping essential employees working in the United States, instead of having to send them abroad as is often the case now, when PERM applications are delayed by denials and long DOL processing times.
According to the DOL, the project will consider the following:
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
- Ranges of case processing timeframes and possibilities for premium processing; and
- Application submission and review process and feasibility for efficiently addressing nonmaterial errors.