New Law in U.S. for foreign employees who desire "Green Cards"

On March 28, 2005, a new law went into effect that changes substantially the way U.S. employers seek permanent residence status for their foreign national employees. Commonly known as “PERM”, this new law is basically the same process that was previously known as “Labor Certification”.

PRE-1996 LABOR CERTIFICATION

The labor certification process prior to 1996, required a U.S. employer to notify the local state employment office of its intent to begin a labor certification. That local office then opened what was known as a “job order,” for thirty-days and issued a case number to the employer.  The state would then post throughout its recruitment network a notice of a job availability to all qualified U.S. workers.  
The local state employment office would also instruct the U.S. employer to how much to advertise for the position and further instruct the U.S. employer as to where to place the advertisement.  
All resumes were directed to the state employment office, which were then forwarded to the employer for review and interviewing of an applicant if warranted.  At the end of the thirty-day period, the employer had forty-five days to file a report of their efforts to recruit a U.S. worker.  Along with this report the employer filed a form ETA 750, parts A (for the employer) and part B, (for the alien worker).
If all requirements were met and the position was one where there was a shortage of U.S. workers, the Department of Labor (DOL), certified the position and the employer could petition for the alien worker’s “green card.”

POST 1996 AND PRE “PERM”

In 1996, a new law entitled “GAL 97,” went into effect, which changed the old system of labor certification.  No longer were U.S. employers required to open a job order with the local state employment office.  Instead, they were permitted to recruit independently of state supervision and using industry and real world standards.  Guidelines were laid out as to what constituted a valid recruitment of U.S. workers.  Over time, each independent jurisdiction of the DOL adopted their own idiosyncratic rules for recruitment of U.S. workers. These rules varied widely from state to state and no uniform method was ever established.  What was valid in Florida was invalid in California.
This method of independent recruitment without government supervision was called, “Reduction in Recruitment,” or “RIR .” At the end of the employer’s recruitment period, they would file as under the old law, a recruitment report and form ETA 750 A and B.  As previously, if all requirements were met, the DOL would certify the position.

PERM

The new law could be considered an amalgam of the two prior versions. PERM allows U.S. employers to still recruit independently of supervision of the government, however, PERM applies strict rules concerning how to proceed with the recruitment.  It also allows employers to file their cases electronically.  The goal of the new law is to complete and certify all electronically filed cases within 45-60 days.  It also replaces the old form ETA 750 A and B with a new form, 9089.  To file online go to: www.plc.doleta.gov

Re-filing under the new law (conversion):

No fee is required to file a case as originally was expected. However, if the alien is required to pay an attorney their fee, the case could be denied as not being a valid job offer to U.S. employees.  PERM also allows those who have currently been waiting under GAL 97, in most cases for years, for their case to be reviewed and certified by the DOL, to ability to withdraw their case and refile under the new law.  
However, the employer will need to meet all the new requirements under PERM, including the prevailing wage and recruitment provisions.  The alien employee will keep their original filing date for priority date purposes (there are backlogs for different categories of job types, sometimes for years, and U.S. employers and alien employees feared that they would lose their “place in the line” if they intended to refile under the new law).  One strict requirement to convert a case is that the job offered must be identical.  You cannot now change the job description, or message it, to enhance the ability of certification.

Recruitment:

Under PERM, a U.S. employer must now prove that it is a real business with real employees on the payroll.  They must also place the offered position for availability with the local state unemployment agency to be offered to unemployed Americans as was done under the pre-1996 law.  Two advertisements on two different Sundays in two different newspapers of general circulation (no small ethnic newspapers allowed), is required.  All recruitment must be done in no less then 30, but no more the 180 days before filing a case under PERM.  Three additional recruitment efforts must be made for professional positions (those where a bachelors degree or higher is required) out of a list of ten different possible methods.

Prevailing wage:

The position offered cannot be one where the salary is lower then what is known as the “prevailing wage.”  Prior to PERM, an employer could pay within 5% of the prevailing wage.  Under PERM, 100% of prevailing wage must be paid.  The DOL is using a new system to determine what is the prevailing wage for a position.  These will be four different levels of skills that will determine what the prevailing wage should be for a particular job in a geographic area. These skill levels are based upon education, experience and level of supervision.  
A complex formula will be used to determine the prevailing wage where a position is not clearly defined to fit into any one of the four skill levels. Information is forthcoming from the DOL on how to apply the new ,four skill levels.  Of interest is that the prevailing wage need not be used in the recruitment process.  However, it will be required for the internal posting within the U.S. Company.
The Prevailing wage once obtained from the local state employment agency, shall be valid for no less then 90 days and no more then one year. The recruitment process must take place within this time period.

In conclusion, it would appear that the PERM will expedite and standardize the labor certification process.  This is a welcomed change. However, based upon the author’s personal experience when the DOL began excepting the electronic filing of the prevailing wage certification process several years ago, PERM will be rife with problems.  The electronic filing of the old prevailing wage certification was to be accomplished within 7 days.   The computer system crashed often, and the DOL resorted to one fax number to which the wage certification form could be sent for certification. Naturally, the number was always busy. After a year or so when the DOL was finally able to accept the form electronically and with consistency, they were generally never certified within the 7-day mandated period.  
Like the old adage goes, “If it ain’t broke, don’t fix it.” As with all governments, they keep on coming up with new ways to keep lawyers in business.


Mark Weiner

Becker & Poliakoff, P.A.

Law Offices

3111 Stirling Road
Fort Lauderdale
P.O.Box 9057
FL - 33312-6525 Fort Lauderdale
USA

Telephone: 001 813 286 2300
eMail: mw@bp-mail.com
Internet: www.becker-poliakoff.com