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Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

January 10, 2009

Yearly Job Loss Worst Since 1945

This was a headline on the front page of the Wall Street Journal on Saturday, January 10th. It's a shocking statistic, and prompts us consider the implication this has on PERM processing. According to the article, 2.5 million jobs have been eliminated in 2008, and 1.9 million "vanished in just the final four months of the year." Job losses are felt across the board, "except for small increases in education and health care services and government employment."

Of particular interest is the fact that, "Many Americans have been out of work for months and are resorting to lower-wage or part-time jobs to make ends meet." For example, I recently learned of an ad for a part-time assistant for a genealogy project, to work only two hours a week on Sundays for $15.00 an hour, that attracted more than 25 persons, including persons with advanced degrees.

Employers filing applications for foreign labor, to substitute US labor, which is the basic premise of the PERM rule, should take into consideration that there is general availability of US workers for most jobs and that many, seemingly over-qualified workers will apply. Being over-qualified is not a basis for rejection of US workers under the PERM Rule, although it may be a valid consideration for some businesses in the "real world."

Based on the above, employers should be prepared to receive more applications than usual, although some of the workers may have no prior experience, education or training in the job offer. Initial sorting of resumes, which must be done by the employer under DOL guidelines, and not by the attorney, should be based on the minimum requirements for the job, as indicated on the PERM form. Employers should also describe the job opportunities and the minimum requirements in great detail, to clarify the job functions. During interviews with U.S. workers, the Employer must determine whether the workers are qualified to perform the job functions, based on their attainment of the minimum requirements.

A reliable form of guidance for interviews is the O*Net classification for the occupation. The O*Net describes the job and its requirements as considered normal in the United States, including the job functions, education, experience, physical abilities and other skills needed to perform the job in a minimally qualified way. It should be remembered that the alien for whom the PERM application is being filed should satisfy all the same requirements.

A fair reading of the current situation is that PERM applications may still viable and approvable, but Employers must establish in the recruitment report why U.S. applicants were rejected and only for lawful, job-related reasons. In many instances, U.S. workers are in fact available and labor certification will not be approved.

With layoffs occurring throughout the U.S., employers should review the PERM rule carefully, including the part which prohibits approval for positions that have been laid off, if such workers have not been considered for the job.

Given the current financial crisis throughout the world, it seems that this is a time when employers, workers and government all have the same interest at heart -- to recover to an economy like the one we had in the past, where jobs are plentiful and workers are scarce.