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Dear Editor:


Streamlined and quick labor certification is a desirable goal that should be affected. Just as backlogs in traditional labor certification prompted an overwhelming preference among practitioners and Certifying Officer’s alike fro RIR processing, backlogs have prompted PERM to emerge from the backburner. While I applaud the effort I remain concerned that in several respects the proposed changes to 20 CFR 655 and 656 will penalize honest and decent employers and workers and miss cases of fraud.

One of the requirements of PERM is obtaining a prevailing wage from the State Workforce Agency (SWA) in the state where the foreign national would be employed. In a streamlines system, there appears to be no opportunity for submission of alternative wage information. Where the SWAs are relying on information from the OES, the results in many cases may be overblown wages out of touch with reality. The SWAs as well as the regions routinely code jobs as level II positions at inflated wages. There will be no chance to challenge a wage of a database administrator coded at over $80,000 per year without subjecting an applicant to the traditional labor certification process and further backlogs.

The result of PERM will be a largely a long list of attestations by employers. What is the disincentive for fabrication? A computer program will check applications and “flag” applications for further examinations such as those not meeting an SWA wage determination. Where will those flagged applications be placed in the queue? The system will also randomly flag applications. Is putting applications in limbo on a random basis really a way of testing a computer system?

The proposed regulations limit the use of specific requirements that are germane to performing job duties in a reasonable manner, without a mechanism to defend them. The DOL would continue to use “cookie-cutter” job descriptions that do not fit the positions offered. The regulations eliminate business necessity. The proposed regulations eliminate alternative experience – a way to broaden a potential pool of applicants. Employers will be forced to waste time with candidates who do not meet all the requirements listed in a labor certification. Unless the DOL can show that the requirement is restrictive or a pretense, why have employers interview unqualified applicants?

Finally, the proposed “PERM” regulations require an employer to offer a wage equal or greater than the prevailing wage, removing the current 5 percent variance allowance. While assuring that employer’s do not prefer foreign nationals over U.S. citizens is laudable, it is counterintuitive to have a policy requiring employers pay foreign nationals a greater salary than that of a citizen.

Will PERM serve its purpose of providing fair processing in a timely fashion or will it inspire fraud and deter honest employers and workers from participating? It would be more useful to apply appropriate resources toward expanding RIR processing and updating and improving the way wages are determined and personnel are trained.

Ross Brady, Esq.

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