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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

PERM: New Rules for Immigrating through Employment

by Carl Shusterman

On December 27, the U.S. Department of Labor (DOL) will publish regulations
in the Federal Register which will introduce a new expedited form of alien
labor certification entitled PERM.  PERM is the "Program Electronic Review
Management" system. On December 23, we obtained an advance copy of the
regulations which we posted on our web site at
These regulations will become effective on March 28, 2005.  In the meantime,
employers may continue to submit regular and RIR labor certifications.  If
an employer with a pending labor certification wishes to submit a labor
certification for this same job under PERM, it must first withdraw its regular
or RIR labor certification, and resubmit the application under PERM.

What if you are an employer who has filed one or more of the 300,000+
applications for labor certification which are currently pending? Can these
pending applications be changed to PERM without losing their priority dates?
Yes, if you do so within 210 days after withdrawing your labor certification
application, and you meet the following three conditions: (1) no job order has
been placed with the SWA; (2) the job offer is identical; and (3) you meet all
PERM-related recruitment and advertising requirements.

PERM will allow employers to submit an Application for Permanent Employment
Certification (ETA-9089) directly with DOL, online if they wish, and receive
an approval within 45 to 60 days if there is no DOL audit.

The ETA-9089 is essentially an attestation which requires the employer to check
"Yes" or "No" to a series of questions, and to describe the job and specific
skills or other requirements.  The PERM page on the DOL web site will include
detailed instructions to assist employers in completing the form.  Employers
will be able to enter the PERM web page by using a password.  The online system
will remember the employer's information (e.g., name, address, etc.) so that on
future applications, this information will be entered automatically, and the
employer will only have to enter information specific to a particular

The employer need not submit any supporting documentation with the form, but
must maintain and supply such documentation if required by the Certifying
Officer.  The standards for reviewing such applications remain the same as
under the current labor certification process: (1) Has the employer met the
procedural requirements of the regulations?; (2) Are there insufficient U.S.
workers who are able, willing, qualified and available?; and (3) Will the
employment of the alien have an adverse effect on the wages and working
conditions of U.S. workers similarly employed?

DOL will audit certain PERM applications according to criteria developed to
identify problematic applications.  As a quality control measure, DOL will
also conduct random audits.

Once DOL certifies an ETA-9089 and returns it to the employer, the employer
must immediately sign the application and submit it in support of an
immigration visa petition (I-140) to the DHS.

The State Workforce Agencies (SWAs) will largely be removed from the process
although employers must still obtain a Prevailing Wage Determination (PWD) from
the SWA before submitting form ETA-9089 to DOL.  Employers will be required to
pay 100% rather than 95% of the prevailing wage.  In addition, the government
will offer a four-level wage system in place of the current two-level system.

As is presently the case with RIR labor certifications, PERM will require
employers to recruit for the job BEFORE filing their applications.  They must
place a job order with the SWA and run two Sunday newspaper advertisements.
If the application is for a professional occupation, the employer must conduct
three additional steps from a list found in the regulation.

There is no processing fee, and this regulation does not specify what the
penalties will be for failure to comply with PERM.  Penalties will be
enumerated in a subsequent regulation.  If DOL denies a labor certification,
the employer may appeal the denial to BALCA.  DOL may, instead of denying an
application, order supervised recruitment for the job opportunity.

Ironically, the biggest advantage of PERM, which is speed in processing, comes
too late to help employers obtain permanent residence for most Chinese, Indian
and Filipino workers in an expedited fashion since the EB-3 category for
persons born in these countries will regress three years starting on
January 1, 2005.  However, for workers born in other countries, and for EB-2
employees, PERM holds great promise.

It remains to be seen what effect PERM will have on the Visa Bulletin and on
green card processing.  It is possible that the ease with which an application
for labor certification may be filed under PERM may result in DOL and CIS being
inundated with a huge volume of new cases.  This, however, is the subject for
a future newsletter.

The regulations are voluminous, 322 pages in all.  To simplify the process of
locating specific portions of the regulations, below are the major subject
headings and pages on which they appear in the December 23 version:

       Page            Subject Heading

       2               SUPPLEMENTARY INFORMATION
                       I. Introduction
                       II. Statutory Standard
       3               III. Current DOL Regulations
       4               IV. Overview of Regulations
       13              V. Discussion of Comments on Proposed Rule
                       A. Fraud, Program Abuse, and Non-Meritorious Applications
       14              1. Concerns about Fraud, Program
                       Abuse and Non-Meritorious Applications
       16              2. Proposals for a Two-Tier System
       20              B. Role of State Workforce Agencies
                       1.Loss of SWA Expertise
       22              2. Job Bank Orders
       23              C. Definitions, for Purposes of this Part, of
                       Terms Used in this Part
                       1. Definition of the Area of Intended Employment
       26              2. Definition of the Employer and Employment
       27              3. References to the INS
                       4. Definition of the SVP and Educational Equivalents
       29              5. Definition of the SESA
       30              D. Electronic Filing of Applications
                       1. Electronic Filing
       32              2. Elimination of PWD Form
       33              3. Multiple Beneficiaries
                       4. Assistance in Completing the Application Form
                       5. Recommended Changes to the Application Form
       35              E. Schedule A
                       1. Nurses
       40              2. Performing Artists
                       3. Expansion of Schedule A
       44              4. PWD Requirement
       46              5. Technical Correction
                       F. Elimination of Schedule B
       47              G. General Instructions
                       1. Financial Involvement
                       2. Representation
                       a. Attorneys and Agents
       48              b. Form G-28
       49              c. Retention of Documents by Attorney
       50              3. Attestations
       51              4. Notice
                       a. Expansion of Notice Requirement
       54              b. Notice for Schedule A Applications
       55              c. Wage Range and Inclusion of Wage in Notice
       56              5. Timing and Duration of Notice
       57              a. When the Notice Must Be Provided
                       b. Duration of the Notice
       58              6. Notice to Certified Collective Bargaining 
       60              7. Inclusion of Posting Requirements in
                       Recruitment Advertisement
       61              8. Retention of Documents
       62              H. Fees
       63              I. Labor Certification Applications for Sch.
                       A. Occupations
                       1. Filing Requirements
                       2. Documentation Requirements for Nurses
       64              3. Documentation Requirements for Aliens of
                       Exceptional Ability
                       J. Labor Certification Requirements for Sheepherders
                       K. Basic Process
                       1. Filing Applications
       66              2. Processing
                       3. Filing Date and Refiling of Pending Cases
                       to New System
                       a. Filing Date
       67              (1) Possible Reinstatement of Section 245(i)
       68              (2) PWD Requirement
       69              b. Refiling of Pending Cases in New System
                       (1) Identical Job Opportunity
       70              (2) Withdrawing and Refiling Cases
       72              (3) Test of the Labor Market
       73              (4) Transition to the New System
       74              (5) Priority in Processing Applications
       76              4. Pre-Filing Recruitment Requirements
       77              a. Job Order and Two Print Advertisements
                       (1) Job Order
       78              (2) Newspaper Advertisements
       82              (3) Professional Journals
       83              b. Additional Recruitment Steps for
                       Professional Occupations
       86              c. Recruitment for Occupations in Appendix A
                       to the Preamble
                       (1) Definition of professional and
                       nonprofessional occupations
       88              (2) Presumptions and Preferences
       91              (3) Recruiting Advertising Requirements
       92              5. Required Advertisement Contents
                       a. Level of Specificity
       95              b. Advertisement Cost
       96              c. Wage Offer in the Advertisement
       98              d. Employer's Name in the Advertisement
       99              e. Placement of Advertisement in Newspaper
       100             f. Inclusion of Physical Address in the Advertisement
                       g. Inclusion of Posting Requirements in One Advertisement
       101             6. Recruitment Report
                       a. Concerns About Preparing Recruitment Report
       106             b. Job Qualification Through Reasonable Period
                       of On-the-Job Training
       109             7. Job Requirements
                       a. Business Necessity Standard and Job Duties
       112             b. Foreign Language Requirement
       114             c. Combination Occupations
       115             8. Alternative Experience Requirements
       119             9. Actual Minimum Requirements
       121             a. Dissimilar Jobs
       122             b. Infeasibility to Train
                       c. Definition of Employer
       124             10. Layoffs by the Employer
                       a. Industry and Statewide Layoffs
       125             b. Knowledge of Layoffs
                       c. Laid-off U.S. Workers
       126             d. Contract Workers
       127             e. Definition of Related Occupations
       129             f. Definition of Layoff
                       11. Alien Influence and Control over the Job
                       a. Number of Employees
       130             b. Familial Relationship Between Alien and Employer
       131             c. Ability to Pay the Salary for the Position
       132             12. Multiple-Beneficiary and National Applications
                       a. Multiple-Beneficiary Applications
       133             b. National Applications
       134             I. Optional Special Recruitment and
                       Documentation Procedures for College and 
                       University Teachers
       135             1. Expansion of the Optional Recruitment
                       Procedures to Include Additional Occupations
                       a. Inclusion of High-Level Positions
                       b. Inclusion of Primary and Secondary School Teachers
       139             M. Live-in Household Domestic Service Workers
                       1. Modifications to the Proposed Rule
       140             2. Oversight and Audit of Domestic Service
                       Worker Applications
                       3. One (1) Year Experience Requirement
       141             N. Audit Letters
       142             1. Elimination of NOFs and Contents of the Audit Letter
       144             2. Criteria for Audits
       146             3. Sending and Responding to the Audit Letter
       148             4. Extensions
                       5. Penalties for Failure to Respond Timely to
                       the Audit Letter
       150             O. Supervised Recruitment
       151             1. Criteria for Requiring Supervised Recruitment
       152             2. Resources of the Certifying Officer
       153             3. Knowledge of the Certifying Officer
       154             4. Supervised Recruitment Process
       156             5. Technical Correction
                       P. Labor Certification Determinations
                       1. Referral of Applications to the Division of
                       Foreign Labor Certification
       157             2. Comments on Determination Process
                       a. Able and Qualified U.S. Workers
                       b. Time to File Requests for Review and Reconsideration
       158             c. Submittal of New Information in 
                       Reconsideration Requests
                       d. Material Misrepresentation
       160             Q. BALCA Review, Consideration and Decision Process
                       1. Technical Changes
                       2. Comments on Proposed Rule
                       a. Elimination of Records
       162             b. Time Allowed to File Request for Review
       163             c. Only Employer Can Request Review
                       d. Debarment of Employers
                       R. Validity of and Invalidation of Labor
                       Certification: Substitution of Alien Beneficiaries 
                       and Issuance of Duplicate Labor Certifications
                       1. Substitution of Alien Beneficiaries
       165             2. Issuance of Duplicate Labor Certifications
                       S. Labor Certification Applications Involving
                       Fraud or Willful Misrepresentation
       167             T. Revocation of Approved Labor Certifications
       168             1. Criteria for Revoking Labor Certifications
       169             2. Time Limit for Revocation
                       3. Consultation with National Certifying Officer
       170             U. Prevailing Wages
                       1. Application Process
       171             2. PWD Response Time
       172             3. Validity Period of PWD
       173             4 Collective Bargaining Agreement, Davis-Bacon
                       Act, and Service Contract Act
       176             5. Elimination of 5 Percent Variance
       178             6. Skill Levels in PWDs
                       a. Number of Skill Levels
       179             b. Inconsistency among SWAs in Assigning Skill Levels
                       c. Academic Institutions
       180             7. Employer-Provided Wage Data
       186             8. Use of Median
                       9. Definition of Similarly Employed
       188             10. Transition of H-1B Workers from
                       Inexperienced to Experienced
       194             11. Submission of Supplemental Information
       196             12. Prevailing Wages for Certain Academic,
                       Nonprofit and Research Entities
       198             13. Role of the SWA in the PW Process
       199             14. Occupational Wage Library
                       15. Technical Correction
       200             16. Miscellaneous Matters
       202             V. CO Review of PWDs

The complete text of the final rule begins on page 219.

The new PERM system promises to be challenging for both employers and attorneys
as well as for the government.  The learning curve will be enormous.  In
addition, some employers will, no doubt, be tempted to cut corners and not
fully comply with the new rules hoping that they will not be audited by DOL.
Having been intimately involved in the attestation process for health care
providers in the 1990s, I can assure them that if they are audited, DOL will
fully investigate them. If their applications contain willful and materials
misrepresentations, DOL will impose substantial fines and perhaps debar them
from further participation in the PERM program.

The PERM regulations stipulate that DOL will answer your e-mail questions about
the new system and establish an online FAQ.  Address your questions to

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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