There are several noteworthy developments in the PERM labor certification world requiring employers and practitioners to rethink how to time PERM applications and to (once again) adapt their processes front-to-end. The COVID-19 pandemic combined with high unemployment rates, as well as U.S. Department of Labor (DOL) efforts to change the prevailing wage system, and an apparent increase in scrutiny of PERM applications, have all contributed to a change in the PERM landscape. Below are the top 5 developments employers and practitioners have been facing with respect to PERM preparation and filing:
Prevailing Wages Returned to July 2020 Levels: DOL The DOL's October 8, 2020 efforts to substantially increase the Occupation Employment Survey/Standard Occupation Code (OES/SOC) prevailing wages levels required to obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC) for a PERM application failed after successful federal litigation. OES/SOC wage data is now back to the (generally substantially lower) July 1, 2020 levels, and employers and practitioners are receiving re-determinations from the NPWC based on that wage data within a few weeks of requesting a re-determination. This has essentially eliminated the need to request use of a published private or custom wage survey from one of the many vendors, and PERM wage analysis and preparation has returned to normal. https://www.flcdatacenter.com/oeswizardstart.aspx
Emailed PERM Approvals Accepted Permanently by USCIS: As of September 25, 2020 employers and practitioners can permanently submit a printout of an electronically (via email) received certified PERM application, Form 9089, with the I-140 immigrant petition to USCIS. The eliminates the need to send the old blue paper printout to the employer's representative and the foreign national for signature and return in hard copy. https://www.dol.gov/agencies/eta/foreign-labor/news
COVID Guidance on Posting Notices: The Office of Foreign Labor Certification (OFLC) confirmed during stakeholder meetings over the summer that an employer wanting to post the PERM wall notice of filing at a corporate office that is closed due to the COVID-19 pandemic and is requiring employees to work remotely, can post the notice on the outside of the office or building. Not all employers find this helpful as some buildings do not permit such postings on exterior surfaces. Other employers say it's better than no guidance.
Processing Times for Prevailing Wage Determinations are up: In practice, processing times for issuance of prevailing wage determinations are between 4 to 5 months, up from 2 to 3 months in 2019 and early 2020. PERM processing times have slowed down to 5 to 6 months, from past 2 to 3 months. This means employers and practitioners must be more mindful of foreign nationals running out of time on their nonimmigrant visas, and may have to initiate a PERM earlier. https://flag.dol.gov/processingtimes
Increase in Audits: Anecdotal data from practitioners indicate an uptick in the volume of PERM audit requests, and increased focus of such requests on the operations of the employer, the basis for the job requirements, as well as the applicant/resume review process and U.S. worker disqualification process. There have also been reports of an uptick in the number of cases put into supervised recruitment, under which the employment must search for a qualified U.S. worker pursuant to DOL instructions and pre-written job postings.
Bottom line: The PERM process, in particular after the recent normalization of the prevailing wage levels, is still working rather nicely, and well-planned and prepared PERM applications continue to be certified without audit fairly reliably. For employers seeking to retain foreign nationals who don't qualify for another green card category that does not require a test of the U.S. labor market, such as multinational manager/executive or person of extraordinary ability, the PERM route remains a good option. Cheers to 2021!
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
