Proposed Regulations on PERM Published May 2002
Posted May 13, 2002
The Federal Register published proposed PERM regulations on May 6, 2002. The Federal Register is the publication where certain Federal Government notices, including proposed regulations, must be made public. The PERM regulations will make significant changes in the labor certification process. These regulations were covered last week (May 03, 2002) in the MurthyBulletin article, PERM Regulations Expected Soon, available on MurthyDotCom. At the time of this writing, the regulations are not yet in effect and cases cannot be filed under the PERM provisions. The regulations will undergo a 60-day comment period following publication in the Federal Register. The Department of Labor (DOL) then will review and consider the comments before issuing final regulations. This process could take several more months.
Expected Timeframe for PERM Implementation
Even after the comment process is complete, the DOL may be unable to make the changes immediately. Additionally, according to Harry Sheinfeld, Solicitor, DOL, Employment and Training Administration, the DOL does not have the technology to implement the proposed procedures at this time. At a May 3, 2002 AILA conference, he estimated that the DOL would not have the technology required until January 2003, at the earliest.
What this means for our readers is that, for the time being, cases will be processed under the present regulations and procedures. PERM is still something for the future, although that future appears to be closer at hand.
How PERM Works
The PERM procedures essentially are designed for expedited the processing of Labor Certification applications. Once implemented, all cases will proceed under PERM rather than the two-tiered process of "regular" and "RIR" (Reduction in Recruitment, pre-advertised) cases. The thrust of the PERM program is to streamline case processing. The employer does not have to provide supporting documentation with the filing, but does need to gather this documentation should they be selected for an audit by DOL. These audits will be performed in cases meeting certain selection criteria. Some cases will also be randomly audited for quality control purposes.
Enforcement Based Primarily on Audits
The DOL anticipates that cases not selected for audit will have a computer-generated decision within 21 calendar days of filing. This shortened timeframe will be a welcomed change over the current backlogs that, in many instances, exceed a year.
Distinction Between Professional and Nonprofessional
The basic structure of the program is based on the requirement that all cases be pre-advertised, as is now done in the RIR process. The regulations set out the requisite amount of advertising, based upon whether the position is classified as "professional" or "nonprofessional." The employer must prepare a summary of recruitment rather than the detailed report currently required. When appropriate, the DOL Certifying Officer can mandate that the employer carry out additional recruitment efforts under DOL supervision.
SWAs' Role Will Be Limited to Prevailing Wage Determinations
The cases will no longer be reviewed by the State Workforce Offices (SWAs). The role of the SWAs will be limited to prevailing wage determinations only. These determinations will be issued on a Prevailing Wage Determination Request (PWDR) Form ETA 9088. Under the current system, as many MurthyBulletin and MurthyDotCom readers know, the SWA acts as the initial intake and review point.
Use of Technology for PERM Process
The new forms are designed to be machine readable or completed in a web-based environment. Initially, the forms will be submitted by fax, although mail will be required if a filing fee is implemented. The ultimate goal is electronic filing. The new Application for Permanent Employment Certification (Form ETA 9089) will replace the current ETA 750 A and B.
The proposed regulation covers 167 pages, so a detailed analysis of the specifics of the program and its long-range impact is not yet available. While the procedure has changed, some of the standards for adjudication remain substantially the same as under the current system.
Elimination of "Business Necessity" Standard
One significant change in the proposed regulation is the elimination of the "business necessity" standard. Under current regulations, the employer can include job requirements that are somewhat atypical if they can also demonstrate that these requirements are necessary in the particular business setting. Usually the employer provides detailed documentation for DOL's review. DOL has concluded that it is too difficult to make detailed, case-by-case determinations on this point. Indeed, issues of business necessity have generated more litigation than any other portion of the current regulations. DOL has therefore decided not to allow such special requirements. Rather, there would be a limited opportunity for the employer to demonstrate the need for a foreign language requirement and educational or experience requirements exceeding those "normally" required for the position. These proposed changes are apt to generate significant controversy.
Obviously, the PERM regulations will change the face of the Labor Certification process in the relatively near future. We will be doing our part in drafting comments to DOL on the proposed regulations and advising MurthyBulletin and MurthyDotCom readers of the developments in this area. The ability to obtain a decision on a Labor Certification application in a reasonable timeframe would be a very welcomed change and, hopefully, would infuse a more real-world approach into the process. © The Law Office of Sheela Murthy, P.C.
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