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PERM still causing problems for employers with foreign workers

PERM certificationThis year marks the 10 year anniversary of PERM (Program Electronic Review Management).

PERM was supposed to help employers speed up permanent residency applications for foreign workers. It allows employers to submit an Application for Permanent Employment Certification directly with the Department of Labor (DOL) to reduce labor certification times. Although PERM improved approval times in some cases, it also created backlogs and resulted in many denials for de minimis errors, all of which place unfair burdens on employers.

Seeking labor certification from the DOL is the first step for an employer looking to sponsor a qualified foreign worker for a green card. Before the Department of Homeland Security (DHS) and the Department of State (DOS) may issue visas and admit individuals to work permanently in the U.S., the DOL must certify that “(a) there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of application in the place where the individual is to perform the work, and that (b) the employment of the individual will not adversely affect the wages and working conditions of similarly employed U.S. workers.”

Starting in March 2005, employers seeking to hire foreign workers could file ETA Form 9089 online or by mail directly with the DOL. Assuming there was no DOL audit, approval was supposed to occur within 60 days, a big improvement for employers and employees.

Unfortunately, that hasn’t been the case. One of the main problems with the system is that electronic processing is very unforgiving. Any errors, even innocent typos, can’t be corrected and can be grounds for denial. The only option in such cases is to withdraw and refile a new form, but that only works if the advertising, recruiting and prevailing wage determination are still valid and within the prescribed time limits. The PERM application must be filed within 180 days of the beginning of the advertising and recruitment process. If the application is denied after the 180 day period, the employer has to undergo expensive advertising and recruiting again before refiling.

Too often we’ve seen small errors, like incorrect dates and typos, result in denials and the employer having to start all over again because they fell outside the 180 day period. In addition, the PERM form itself has created difficulties for employers. Confusing and unclear instructions have been problematic for the last 10 years. Some instructions for filling out the form are on the form itself while others are published separately on the DOL website. For example, we’ve had trouble determining where to include specific information about the worker’s licenses and understanding the requirements and procedures for advertising and recruiting online. DOL’s solution was to issue FAQs, which are an additional layer of material for the employer to decipher.

As a result of these issues with the PERM process and other criticisms, the DOL announced it will be initiating a review of the PERM program and relevant regulations. As part of this review, DOL is seeking input on the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

DOL stated its intention to modernize the program to make it more responsive to changes in the national workforce and enhance the integrity of the labor certification process.  (Click here to read the DOL release.)    We hope that’s the case. As it stands now, approval times for unaudited forms are at around 7 months. For audited applications, it takes over 15 months, which is well beyond the 180 day period.

In the meantime, the best course of action is to have experienced legal staff handle these applications to ensure there are no errors. Starting over to fix a mistake is an expensive and time-consuming remedy that no employer wants to undertake.

Please contact us for more information or help with your PERM application.

Immigration News from ILW.COM
FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. So don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and the immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better. So contact one of our attorneys today to get started. Or click here if you want to learn more about the different types of visas that are available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.   Or click here to read more information about green cards.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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