Department of Labor – PERM Factsheet

December 1, 2014
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PERM 1

The Department of Labor, the government agency responsible for overseeing the Labor Certification process in Employment Based Green Cards (EB2 and EB3), otherwise known as PERM has issued a fact sheet stating it’s intentions to modernize the PERM requirements and methods.  The fact sheet is likely in response to President Obama’s Executive action in other areas of US immigration that were primarily targeted towards the Department of Homeland Security.  As a Chicago based immigration lawyer regularly dealing with employment based green cards, we are always looking for ways to circumvent the tedious, expensive, and unpredictable PERM process.  As I have discussed in previous blog posts, the processing times for PERM have skyrocketed in the past few years, audits have increased, and denials have increased.  Perhaps Government Officials in charge of Immigration believe by increasing processing times and making the process more challenging and expensive for employers will reduce the amount of applicants, which will in turn reduce the backlog currently faced in the EB3 category and in EB2 for China and India.

My role as an immigration lawyer is to try and find the most efficient route to achieve our clients goals.  When the goal is a green card, we try to make PERM among the last options for the reasons stated above, however it is not always possible.  We of course look to see if the applicant will be marrying a US Citizen for a marriage green card.  If not, we review whether an EB1 Extraordinary Ability or Outstanding Researcher is available, or perhaps an International Manager.  If an EB1 is not available, or the client is not in a retrogressed category, we explore a National Interest Waiver.  PERM is the next step in our analysis.  We of course review whether the client is interested in an EB5 Investor Green Card, however due to the high capital requirements and longevity of the EB5 process through conditional residency or permanent residency, PERM is usually an earlier option.  While it is encouraging that the Department of Labor is going to study the process, many immigration attorneys around the country have expressed their concerns about the current process.  For instance, the purpose of PERM is to protect US workers and make sure there are not any available US workers for the offered position.
Taking out the political and economic arguments (ie. protectionism vs. free markets), the requirements and execution of the process are extremely out of touch.  Not many US workers search for jobs in Sunday newspapers.  The PERM process requires 2 Sunday newspaper advertisements be made which in many markets is very costly.  Since not that many job applicants utilize the Sunday newspapers anymore for their job search, this seems to be a waste of employer money.  A frustrating part of the PERM process as an Immigration Lawyer is the tediousness.  The most minute details are sought to find ways to deny the case.  It would be comparable to a criminal case where the police find drugs on the defendant, but because the most minute detail was not followed by law enforcement, the person carrying the drugs is set free.  The details get away from justice.  With processing times ranging from 8 to 12 months and the risk of an audit that will add on another 10 months, denial due to a small detail just does not seem fair.  If the adjudication process is going to be scrutinized for details that are not always relevant to protecting US workers, perhaps adjudications should be reduce to a month so that the previous recruitment efforts can be reused, when practical to do so.

Any improvements to the process are welcomed.  The main points DOL will be studying are:

  1. New options and methodologies for identifying occupational shortages and surpluses – This is a bit vague and not really sure what DOL is referring to here;
  2. Methods and Practices designed to modernize U.S. Recruitment requirements – as mentioned above 2 Sunday newspaper requirement often makes the process too expensive for employers or just not practical.  Hopefully the 2 Sunday newspaper requirement will be on the list of improving the PERM process;
  3. Processes to insure PERM positions are fully open to US Workers – this really does not make sense.  An employer is agreeing to sponsor the foreign applicant for permanent residence because they want this foreign applicant to work for them on a permanent basis – why would an employer want to look for someone else.  This is a disconnect from reality.  I’m not quite sure what DOL is thinking here;
  4. Ranges of case processing times and possibilities for premium processing – It’s frustrating and nerve racking for both the immigration lawyer and client to go through this process and then have to wait 8 to 10 months for a response and then have to go through a 10 month audit process.
  5. Application submission and revise process for efficiently addressing non-material errors – as described above, when the focus is on details that are not material, especially when there really isn’t an error, it get’s away from justice and reality.  It also gets away from the purpose of seeing if there was a test of the labor market.

Immigration lawyers all over are welcoming any improvements to the PERM process.

The DOL fact sheet can be found at this link:

 

http://www.dol.gov/dol/fact-sheet/immigration/perm.htm