PERM Regulation (Revolutionary New Labor Certification Program)
2/25/2004
Please be advised that the Department of Labor (DOL) has sent its final PERM regulation to the Office of Management and Budget (OMB) on February 23, 2004. OMB has up to 90 days to review the regulation and either return it for further work or send it on to the Federal Register for publication. The DOL has indicated that the regulation would take effect 120 days after publication. Therefore, if OMB approves the regulation, the new PERM rules will take effect in the late Summer, 2004.
No one knows exactly what the final regulations will look like, but as we have communicated to you in prior Advisories, the proposed regulation was extremely restrictive and not at all business-friendly. For example, the proposed regulation did away with the 5% leeway and required all employers to pay the full prevailing wage. It eliminated the "business necessity" rule, so that employers would no longer be able to justify having a requirement for a job that exceeds that used by other companies. It required all labor certification advertisements to contain the salary for the position and that all labor certification posting notices be posted electronically at the company, including the wage, for all employees to see. It eliminated the ability to file a labor certification application for anyone on the basis of the person's prior experience with the same employer, even if in a completely different position, and even with an overseas entity, and defines the ?same employer? to include predecessor companies. It proposed a labor certification filing fee. These are just some of the examples of the restrictive provisions of the proposed regulation.
The proposed regulation, when originally published in the Federal Register, raised an outcry among the business and educational community. The DOL received an enormous number of negative comments and constructive criticism regarding the proposed regulation, and we hope that the DOL has taken those comments into consideration in finalizing the regulation that it has just sent to OMB. If so, the new regime may provide a labor certification system that the business community can live with.
Precisely because no one knows the content of the regulation, it is prudent to file labor certification applications between now and when the new regulation takes effect, to make sure such applications will be processed and adjudicated on the basis of current law. This is an excellent time to review the status of your employees in nonimmigrant status, to determine whether to start the labor certification process sooner rather than later.
We will continue to keep you apprised of the latest developments in this critical area.
