General Review of PERM System

Attorney Jian (Joe) Zhou

After its implementation about 18 months ago, the PERM (Program Electronic Review Management) system has been operating very smoothly. Since March of 2005, Zhang & Associates has successfully submitted numerous PERM petitions for our clients, gaining valuable experience and knowledge about the PERM system. At the same time, we have carefully studied various memos and notices released by the Department of Labor (DOL) and actively corresponded with AILA (American Immigration Lawyers Association) about the PERM process.

Real experience and detailed legal research has helped the firm’s PERM legal team master the procedural steps of the PERM process and gain valuable skills, allowing us to feel confident in handling PERM cases.

Processing Time for Online PERM filing

According to our experience, if an attorney can carefully design the job position description and requirement, skillfully arrange the recruitment process, and accurately fill out the PERM forms, the processing time can be substantially reduced compared to the process prior to the PERM. Our team has filed numerous PERM petitions online, which were certified on average within 3 months of filing, many of which were approved within weeks or even days. As of today, our firm does not have any PERM cases that were eventually denied by the DOL.

Our most successful PERM case is a Chinese national who was a computer engineer entering his 6th year of H1-B status. After he retained our firm, our team discussed various options with his employer and finally decided that applying for the EB-2 PERM was in his best interest. Although the DOL requires that computer engineer positions usually require a bachelor’s degree, we felt that because of the client’s long employment history and complexity of the position we were confident to face any possible DOL audit. We assisted the employer in completing the recruitment process in the shortest period of time allowed by the law. In mid-July, we filed the PERM online and in mid-August the case was approved without being subject to a DOL audit. In early September, we concurrently filed an I-140 and an I-485 for the client before the retrogression for EB-2 effective on October 1, 2005. About 2 months later, his I-140 was approved. Under AC-21, when the birth country of the I-140 beneficiary is subject to visa retrogression, even if that beneficiary’s H-1B has reached the maximum period of 6 years, he can still have another extension for 3 years if his I-140 has been approved. As a result, our client not only could file his I-485 with incidental benefits (eligible to file EAD or Advance Parole) but also extend his H-1B for 3 years to maintain an independent non-immigrant status.

Choice between EB-2 and EB-3          

Employment based immigration is divided into five categories.  The Second Employment-Based preference (EB-2) includes petitions with requests for the national interest waiver (NIW).  This preference group has two subgroups within this category: professionals holding an advanced degree (beyond a baccalaureate degree) or a baccalaureate degree and at least five years progressive experience in the profession; and persons with exceptional ability in the arts, sciences, or business. The Third Employment-Based Preference (EB-3) includes skilled workers, professionals holding baccalaureate degrees or two years of experience and other workers.

Currently the EB-2 visa is available to all aliens from countries other than China and India, while the EB-3 category has a worldwide retrogression of more than five (5) years.  This means that if one applies through the EB-2 category their petition will be adjudicated earlier than if one applies through the EB-3 category. Furthermore, even though the EB-2 category has a significant backlog for Chinese and Indian nationals, this backlog is less than that of the EB-3 category.  This means that choosing the EB-2 category, requiring master’s degree or more advanced, will be very important for alien workers, and may help them obtain green card years ahead of others.

As the PERM system went into operation, the DOL lowered the degree requirements for many engineering and computer related positions, such as computer engineers, mechanical engineers, and software programmers. For many occupations, the DOL published basic job requirements requiring only a bachelor’s degree. In the PERM system, the DOL emphasizes that if the employer’s job requirements exceed the DOL’s requirements then the DOL may require the employer to document the business necessity for this higher degree requirement. If a case is audited by the DOL on the basis of the position requiring a higher degree requirement than that of the DOL’s, then the PERM process will be delayed and the risk of failure will increase. 

In the past 18 months of filing EB-2 PERM petitions, we have tried our best to strategically prepare or design an operable EB-2 PERM package in order to avoid or deal with the possibility of a “business necessity” audit by the DOL.  We have already successfully processed and filed many PERM petitions for computer software engineers or programmers and without receiving any DOL audits. Therefore, we believe that an EB-2 PERM case with a degree standard that is even higher than the DOL’s requirement but with a reasonable design has a relatively small chance to be audited.  This experience might be good news to many alien workers still using the “wait and see” method, especially for the alien workers born in mainland China and India. We estimate that visa availability will be moving forward for EB-2, which is why choosing EB-2 in some situations over EB-3 will be more successful.

PERM Recruitment Period is shorter than RIR

In the new PERM system, each employer is required to have 3 mandatory recruitment activities, which are two (2) Sunday newspaper postings, an Internal Job posting at location of employment (or proper notice to bargaining representative if the position is a union position), and a thirty (30) days State Workforce Agency (SWA) Job Order.  In addition to the mandatory recruitment efforts, three (3) additional activities are required, which may include, but is not limited to an online job posting, a posting on the company website, a employee referral program, or a posting in a local/ethnic newspaper.  The mandatory job order posted with the State Workforce Agency will require the longest period of time to complete, as one needs to post it for 30 days.  If the employer can finish the 2 Sunday newspaper postings, internal job posting, and 3 additional recruitment activities and receive a Prevailing Wage Determination (PWD) then it is possible to submit the PERM application in 30 days. In the best case scenario, from the beginning of the PERM recruitment until the final submission, the whole process can be completed within 60 days.

In practice, since many employers will make many modifications regarding position requirements or will need to wait for the state decision regarding the PWD, PERM cases are normally further delayed.  In most cases the process can be completed in 3-4 months from start to filing plus 1-3 months of waiting for approval. So on average a PERM case from start to finish can take anywhere from 4-7 months. According to our analysis, the PERM recruitment process is much shorter than RIR, thus highlighting the PERM’s many advantages.

Current Developments on Prevailing Wage Determination

Along with the implementation of the PERM system, there were changes made to the Prevailing Wage Determination (PWD) process.   The new PWD has a four level hierarchy where the first level is the lowest level.  The prevailing wage is the minimum wage required that the employer must meet as determined by the State Wage Determination officials.  The prevailing wage varies from state to state, as different State Workforce Agencies may determine the prevailing wage differently.  After the adoption of the 4 level prevailing wage hierarchy, people have been worried that occupations requiring a master’s degree might be put in the highest level of the hierarchy.  In our practice of cases for positions requiring a master’s degree, with an experience requirement of 2 years the PWD level has usually been set at the second level. Only for those senior positions specified by the job description or other management positions will the PW be bumped to the third or fourth level. As a result, as long as there is an experienced attorney who can make an effective design, the prevailing wage may be kept within a certain range.

Filing PERM While RIR is Still Pending

In the past, the DOL published some regulations to limit employers from submitting more than one LC for one employee. After these rulings were released, they were shortly retracted because they were possibly in violation of higher administrative rulings or law. It is permissible for an employer to file more than one LC for the same employee, as long as the positions are different, since they will be seen as different job opportunities. We generally advise the same employer not to submit more than one PERM application for the same employee because the PERM processing period is relatively quick and results can be known shortly, so filing more than one may cause unnecessary confusion or delay.

As to the alien workers with traditional RIR LC still pending, they too can take advantage of the system by filing a PERM application. In some circumstances where the alien has an EB-3 pending but the company now has an EB-2 opening, or if the alien has an EB-2 RIR LC pending, we recommend the client file a PERM application, as it is to the alien’s advantage. For now, the DOL has no formal regulations limiting RIR applicants from filing a PERM case. We have helped many aliens with RIR pending status successfully file PERM applications.

Moreover, if an alien has a RIR LC still pending, the status of their case will not be impacted by the submission of a PERM case and/or the subsequent approval of the PERM case.  Once their RIR LC is approved, the alien is able to file an I-140, which allows them to preserve the earlier priority date.  This earlier priority date can be carried over to a future labor certification application, I-140, or I-145.  To this end, the pending RIR LC is valuable even when a new PERM has been approved.
Looking Forward

We believe that the Department of Labor PERM System has become very advanced, and our firm’s specialized team has successfully handled many PERM cases.  As a result, we have a thorough and extensive grasp on the PERM process, which is important to our clients.  We are also familiar with the deficiencies or weakness designed by the DOL with respect to the PERM online application systems. So reiterating our caution in the past year, we are confident now in informing every alien worker that if you are eligible then you should take advantage of PERM ASAP.

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