Concerns with DOL's PERM Regulations
Posted Jul 12, 2002

Regular readers of the MurthyBulletin and MurthyDotCom are aware that the U.S. Department of Labor (DOL) issued long-awaited proposed PERM regulations on May 6, 2002. Essentially, the voluminous proposed regulations, which are designed to expedite labor certification processing, revise and overhaul the entire labor certification process. We discussed these changes in our May 13, 2002 article, Proposed Regulations on PERM Published May 2002. These proposed regulations have raised significant concern within the business, immigrant, and legal communities. Voiced in formal comments by the American Immigration Lawyers Association (AILA) and others, the concerns are, essentially, that the regulations do not reflect the real-life business world. It is feared that the regulations may cause instability in the job market due to reasons listed below.

Job Descriptions

One problem with the proposed regulations is that they would limit descriptions of positions on labor certifications to generic job descriptions. The employer would therefore be unable to designate specific skills required for the position and would demonstrate that the required skill set was needed by the business. Of course, in the real world of business specific sets of skills are often required for certain positions due to technological and other considerations.

Qualifying Experience

The regulations also eliminate the employer's ability to consider related experience. Only experience in the precise position offered is regarded as relevant. In a common example from the IT field, if the job offered is Software Engineer, then experience in positions such as Programmer, Systems Analyst, etc, would not qualify. Rather, only prior work as a Software Engineer would be deemed relevant.

This policy does not reflect the real world where many of the best employees gain a breadth of knowledge moving through a series of progressively more responsible positions. It also represents a departure from previous DOL policy that recognized the value of progressive experience. For example, a Bachelor's degree plus five years of related, progressive experience has been considered equivalent to a Master's degree for EB2 purposes. And of course, potential employees' skills are not optimized if they are forced to stagnate in the same type of position.

Advertising Costs

The proposed regulations would increase the cost of advertising the positions, as the advertisements can no longer be brief, inclusive job advertisements that cover several positions.

Prevailing Wages

The regulations would also eliminate the long-standing “5% rule” regarding prevailing wages. This rule allows a 5 percent variance between the offered wage and the required "prevailing" wage. The reason for this rule is that the DOL acknowledged years ago that the wage surveys are not an exact science. The elimination of the 5 percent rule ignores this reality.

Consideration of U.S. Applicants

Particularly troubling provisions would not allow employers to reject unqualified U.S. workers applying for positions if they could be made to qualify through on-the-job training. The employer would be forced to provide training to under-qualified applicants and bypass more suitable, foreign applicants.

Revocation of Approved Labor Certifications

There are also provisions, as discussed above, which would allow the DOL to revoke labor certifications "for cause" if the certification was issued less than a year earlier or the beneficiary has not received a visa number. There is no standard for revocation, so it is unclear what the grounds for revocation could be. This change would lead to a great deal of uncertainty both for the worker and the employer.

Everyone supports the goal of expediting the labor certification process, as the current lengthy delays result in numerous problems and also distort business reality. However, if these issues are not addressed in the final regulations the new system will simply replace one set of problems with new set of potentially more serious problems.