About Us Contact Us Help




Permanent Residency Under PERM

Navdeep Meamber and Krishna Palagummi

The long awaited Program Electronic Review Management (“PERM”) rule for filing an employment based petition for green cards went into effect on March 28, 2005. PERM is a new methodology to file for labor certifications, replacing the earlier traditional and Reduction in Recruitment methods. Labor certification is the first of three steps to acquire a green card through the employment route.

The good news

Labor certification applications filed under the PERM rule are expected to only take an estimated 45 to 60 days to adjudicate.  Another advantage is that the PERM rule takes a liberal view in that it allows consideration of experience with the “same employer” so long as such experience gained is not “substantially comparable” to the job for which the labor certification is being sought.

Another liberal interpretation by the PERM rule is the definition of “same employer.”  Under the PERM rule, “same employer” means the employer with the same Federal Employer Identification Number (“FEIN”).  Therefore, foreign workers who work for overseas parent or subsidiary companies of U.S. companies may be able to use the experience gained from such employment if the FEIN of the employers is not same. 

The not so good news 

There is a provision for random audits of some cases, which will be selected by Department of Labor (“DOL”) personnel.  Cases for audits are (a) randomly selected by DOL’s computer system or (b) triggered by certain responses from employers on the PERM application.  Some examples of possible red flags that may trigger an audit include: experience gained with same employer, business necessity and foreign language requirements.

In addition, the PERM rule requires that all alien labor certification applications filed on or after March 8, 2005 must meet 100% of DOL’s prevailing wage requirement for the job occupation, rather than the more flexible standard today. 

Risks Involved in the PERM Process

It is important to note that an application certified under the PERM rule is subject to revocation at anytime by the Certifying Officer of DOL.  A Certifying Officer may revoke a certified petition if he or she believes that such labor certification should not have been granted.  Therefore, there is a possibility of revocation of the green card after the foreign worker has received it.

Although a pending case cannot be converted to take advantage of the PERM rule, the regulations discuss the withdrawal and re-filing of pending cases.  However, it is too early to determine if a given case could be withdrawn and successfully re-filed under the PERM rule without losing the original filing date (priority date).  A priority date is important especially in light of the current EB-3 retrogression and non-availability of visa numbers.  According to the PERM rule, a pending case could be withdrawn and re-filed without losing the priority date as long as (a) no job order has been placed with the State Workforce Agency (“SWA”) and (b) the employer, alien worker, job title, job duties, job requirements and work location are identical.  “Identical” means the case to be re-filed is identical to the pending case in terms of employer, foreign national, job requirements, job title, job location and job description.

When filing an application under the PERM rule, employers are required to answer “yes” or “no” to the question “Are you seeking to utilize the filing date from a previously submitted Application for Alien Labor Certification (ETA-750)?”  If an employer answers “yes”, the following takes place: (a) the previously filed application will be withdrawn and (b) DOL will determine whether the new application filed under the PERM rule is identical to the previously filed application.  If the re-filed application is determined not to be identical to the original application, the re-filed application will be processed using the new filing date, and the original application will be treated as withdrawn.  However, if the employer answers “no” to the question, the rule appears to indicate that the previously filed application would not be withdrawn, allowing the two applications to continue processing.
Real World Recruitment Efforts

The PERM rule requires that the pre-filing recruitment should not begin more than 180 days prior to the filing of the application and should end 30 days prior to the filing of the application.

Employers will be required to place at least two advertisements on two different Sundays in the newspaper.  The ads may be placed on two consecutive Sundays and must contain the name of the employer, geographic area of employment, a job description specific enough to apprise U.S. workers of the job opportunity and direct applicants to send resumes or report to the employer, as appropriate.  The employer need not include the salary in the ad.  However, if the employer chooses to include the salary in the ad, the salary stated must meet or exceed 100% of DOL’s prevailing wage requirement for the job occupation.

For professional positions, the PERM rule requires that employers follow at least three different additional recruitment steps from the following ten steps: (1) job fairs, (2) the employer’s website, (3) a job search website other than the employer’s (includes America’s Job Bank, internet ads placed in conjunction with newspaper ads and job search websites such as monster.com or hotjobs.com), (4) on-campus recruiting, (5) trade or professional organizations, (6) private employment firms, (7) an employee referral program, if it includes identifiable incentives, (8) notice of job opening at a campus placement office, if the job requires a degree but no experience, (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity, and (10) radio and television ads.

Employers will also be required to place a job order with the SWA for a period of 30 days. In addition, the employer must post notice of the job opportunity for at least 10 consecutive business days and the notice must contain the salary. 

The PERM rule also requires employers to use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar position in the organization. 

Furthermore, employers will be required to consider workers it has laid-off in the six months immediately prior to the filing of the application under the PERM rule. 

In its recruiting process, employers should note that if a U.S. worker lacks a skill that may be acquired during a reasonable period of on-the-job training, but otherwise qualifies for the job, the PERM rule provides that the lack of that skill is not a lawful basis for rejecting the U.S. worker.

Practical Considerations

Further guidance from DOL is expected on the PERM rule.  Until such guidance is released, it is prudent to wait and observe how the PERM process unfolds in the months after March 28, 2005.  Given the visa backlog situation and other factors, it may still be advisable at this time to move ahead on filing cases via traditional or RIR processing due to specific timing and eligibility issues.  In particular, additional consideration should be given to visa number retrogression in the third employment-based visa preference category and uncertainties regarding the effect of PERM re-filings on extensions of H-1B classification past the sixth year.

Now that the PERM rule has been published, employers may wish to begin advance preparation for the implementation of the new system and conduct recruitment with an eye toward filing new cases under the PERM rule.  Until clearly defined interpretations of DOL are available, employers should use great caution in analyzing all implications of withdrawing and re-filing pending cases under the PERM rule. 

(Navdeep Meamber works at the Santa Clara office of The Chugh Firm and may be reached at navdeep@chugh.com and Krishna Palagummi works at the New Jersey office and may be reached at krishna@chugh.com. )

Bookmark and Share | Share your Comments

Comments :
Post a new message
1.enconowerlx July 28, 2013 
2.enconowervw July 28, 2013 
3.enconowerff July 28, 2013 
4.enconowerkr July 28, 2013 
5.zdYAgTklDHKnLAimCMN July 7, 2013Spike 
6.KWUzAUuJMJ July 7, 2013Kaylan 
7.xcYmnOaCTegXa July 7, 2013Finch 
8.cFKwagSRcK June 26, 2013Amberly 
9.rzQfPcyRyho June 24, 2013Grizzly 
10.zyYxPPHRtimkMTjVO June 24, 2013Alexandra 
11.XysGBsKotyY June 22, 2013Cayle 
12.QEBQfeLHkZlBpJJ June 16, 2013Gracye 
13.zXqaXsAuTF June 12, 2013Lavar 
14.cvebJmqxUGDfKaVJW May 30, 2013Kenelm 
15.hIcffscNlkFqbg May 27, 2013Letitia 
16.XauCDeXGKd May 23, 2013Solyn 
17.xKtOOviTaFyEIAgIHY May 18, 2013Bubby 
18.vyBjZEPXxvvEVnUAPk May 10, 2013Cordy 
19.AlYRwEATrXCz May 8, 2013Tyanne 
20.iELHiFVVtQAfmPAaypc April 22, 2013Latisha 
21.aqgvJTPxbDtxYnctfHz April 22, 2013Johnelle 
22.PcKuPddayJhvd April 22, 2013Peerless 
23.qsIrPWqmLUD April 22, 2013Affinity 
24.TnrXhbqOBmbZpVXDBgy April 18, 2013Esther 
25.GGdrHkpivR April 14, 2013Alexandra 
26.elixlFzUyfB April 10, 2013Carrieann 
27.AhoUSTfpOLw April 6, 2013Janine 
28.KGWhqrRKNGy March 26, 2013Adonica 
29.MTyuzLualZZgMzSKZYI March 19, 2013Micheal 
30.xghdHUDExplKNrsmzP March 13, 2013Vina 
31.XvRJhysesUGCj March 4, 2013Sequoia 
32.mONbjtMSMEIoZ February 11, 2013Letitia 
33.eEDuRTpuYGcOW February 1, 2013Midge 
34.dAlHjdPBSMXZYdGaLLc January 26, 2013Jeannie 
35.qdVTuagPCjAxCiQkft January 15, 2013Ival 
36.geZCQnwRhtwltzF January 4, 2013Jennica 
37.wRcvnkNCbeBuZeChgzl December 31, 2012Darrance 
38.GfPXJJnwcSnWMZgzjV December 27, 2012Carlynda 
39.mqBuxglFMtIgGI December 27, 2012Carlynda 
40.dqzJDZHkIiB December 21, 2012Lovie 
41.jIuGTjLayB December 20, 2012Susannah 
42.kzcdMSFOMJLENc December 18, 2012Mikel 
43.lKgsfuPOUKlGHIwmd December 14, 2012Johnelle 
44.aXMwsytNzmocKaGe December 14, 2012Darvin 
45.HHhUXIngQvlYVhLQUfo December 10, 2012Loree 
46.SfQvnjQTOJyTGuLXDn December 8, 2012Capatin 
47.lxutItHvfMNXDQr December 4, 2012Lolly 
48.kIClraQRxZYFJtQBI December 3, 2012Ally 
49.kfkAWcUQRoCxjjZn November 30, 2012Jalen 
50.gIYFNqPcIeYb November 21, 2012Jonalyn 
51.fchdFgExaRnli November 15, 2012Karson 
52.XtZskqjKDOIvffjBq November 9, 2012Tori 
53.oaCTAHjfvjch November 5, 2012Dalton 
54.eGrITkxbOmVrBNm November 3, 2012Roxy 
55.mKasjNLNyjwhEzvKV October 28, 2012Wind 
56.TmVlnbwcDUHcFC October 26, 2012Satchell 
57.ErLhxCkLevsCQETQMjw October 22, 2012Brendy 
58.FIKQAsXTrvuJ October 20, 2012Lavigne 
59.ahqgKTFrqHlSadtrBQr October 19, 2012Unity 
60.fNaHElXZuyUqM October 2, 2012Kaylin 
61.bpwwsmgpCj September 25, 2012Midge 
62.fHmMbyjuKqkksTrWIW September 15, 2012Karcy 
63.wYlQwUogoZoPwv September 13, 2012Kert 
64.wYlQwUogoZoPwv September 13, 2012Kert 
65.wYlQwUogoZoPwv September 13, 2012Kert 
66.iUZFEPpVmRIF September 5, 2012eylibzsax 
67.rImjXsFabOeRUosOCNp September 4, 2012Vaclava 
68.lv August 11, 2010lv 

In this Issue
Bollywood Baatein

The sudden demise of two legendary personas of the film world, actor turned politician Sunil Dutt and filmmaker Ismail Merchant was mourned by cinema lovers.

Bollywood Baatein
Film Review - My Brother Nikhil

A powerful and sensitive film on the power of a sister's love, gay rights and the misconception of AIDS in India.

Film Review - My Brother Nikhil
For The Mathematically Inclined

Congratulations to Kiran Adhya, Sumita Adhya, Chandran Elumalai, Amar Gupta, Samir Mehta, Pooja Nagda, Bipin Parekh, Ameek Ponda, Laksh Puri, Neha Sharma, Dharmesh Thakkar and Vamsi Vuppala, who were winners of the last set of puzzles. Here is one puzzle for kids and one for adults.

For The Mathematically Inclined
Thought For The Day

Imagination is the highest kite one can fly. --Lauren Bacall

Thought For The Day
IIT 2005 Attracts Over 2000 Participants

2000 people attended the PanIIT meeting held in North Bethesda, MD. The speaker list included luminaries like Jack Welch, Arun Shourie and Tom Friedman among others.

IIT 2005 Attracts Over 2000 Participants

You may also access this article through our web-site http://www.lokvani.com/

Home | About Us | Contact Us | Copyrights Help