08/07/2004: PERM update

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puhrince

Registered Users (C)
Probably, by now people are sick to hear the term "PERM." There have been few "promised lands" which have not been kept and frustrated people as bad as this one. Ever since the DOL released the so-called "Five-Year Strategic Plan" in 1999 announcing the backlog reduction strategies which included the backlog reduction for existing cases and start of the PERM program for the new cases, it has surfed unknown territorial water over and over with no end in sight. After a struggle, DOL was successful in releasing the "proposed" regulation. Reportedly, the proposed regulation produced mountains of comments of pros and cons, giving the DOL an excuse for the further delays. Along the way, there was a change of leadership in the Foreign Labor Certification Division in the DOL leading to another delays. For heaven sake, despite the hurdles after hurdles, the DOL was able to work out the final regulation under the new leadership and forwarded it to the OMB in the White House in February 2004. When the 90-day review ended on May 21, 2004, the DOL reportedly requested the OMB to extend the OMB review because of the comments from its sister and brother agencies of Homeland Security Department, State Department, Department of Justice, etc. In the June AILA National Conference in Philadelphia, the Chief of the Foreign Labor Certification of DOL who was in charge of the PERM disclosed that the final regulation had to be revised because of the "room for fraud" concerns addressed by its sisters and brothers. The question remains where these brothers and sisters were when the proposed regulation was released!
Now this regulation is being held hostage in the White House. The American economy is continuously struggling despite the rosey picture some so-called "financial analysts" and political pundits attempt to draw through the cable TVs, Internets, and printed newspapers. Unemployment rate continues to remain high without much changes. Outsourcing has already given a trouble to the Bush Administration in the 2004 election politics. Now, we start hearing a rumor that the concept of "21-day" approval of foreign labor certification rather than taking years and years is the last "word" which the White House wants to hear under the current election environment. Anti immigration forces have also been working hard to picture the PERM program as "opening a flood gate for the foreign cheap laborers." The truth of this rumor is still unverificable. One thing we can only tell is that the regulation is going nowhere in the OMB, White House. The 90-day extension will reach on August 20. God knows what will happen then. No wonder why people hate politics and the term "politician" is not a noble term, unlike "statesman." Come November, whoever wins, we want to see a life which is not "totally" washed out by politics.
 
this is the only thing I got for an update!

"August 20, 2004 marks expiration of 90-day extension of OMB review of the PERM regulation. Since the OMB review executive order stipulates one-time only extension of the OMB review, it is expected that by early next week, the immigration community may hear something about the result of the review."
 
puhrince said:
this is the only thing I got for an update!

"August 20, 2004 marks expiration of 90-day extension of OMB review of the PERM regulation. Since the OMB review executive order stipulates one-time only extension of the OMB review, it is expected that by early next week, the immigration community may hear something about the result of the review."
Click to expand...
August 20, Friday - Important Day for Permanent Labor Certification Reengineering

August 20, 2004 also marks the effective date of the recently released Backlog Reduction regulation. Since no details have been released as to how the Centralized Processing Centers will be operated in Philadelphia and Dallas and how the cases will be transferred to the Centers from which states and Regions and in what order, the immigrant community should hear some answers to these questions in the very near future. Please stay tuned.
 
PERM Final Regulation Rulemaking Process in ZigZag

There is a wide spread rumor in the immigration lawyers community that the OMB review will not be completed until the November election is over. This rumor is premised on the theory that the White House is strongly opposing this regulation for the reason that it may be taken as an amnesty by the public and can affect the election. However, this rumor can materialize only if the President turns down the regulation because of the law that governs the OMB review. Because of the OMB review rule, the PERM regulation will have to be either rejected by the President or approved within 180 days from the date of submission of the regulation by the DOL, which was February 23, 2004. Let's review the OMB review rules.
The law that governs the OMB review is Executive Order 12866 of October 4, 1993. The Section 6 (b)(2) provides that OIRA (subunit of OMB) "shall" waive or notify the agency in writing of the results of its review within the following time periods: (A) For any notices of inquiry, advance notices of proposed rulmaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA. (B) For all other regulatory actions, within 90 calendar days after the date of submission of the information..., unless OIRA has previsouly reviewed this information and, since that review, there hs been no matierial change in the facts and circumstancds upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and (C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of teh agency head.
The PERM regulation falls under Section 6(b)(2)(B) and (C). As we reported earlier, the DOL Foreign Labor Certification Chief disclosed that there was material changes to the Proposed PERM regulation as the DOL's final regulation incorporated substantial changes to the published Proposed PERM Regulation. Accordingly, under the Section 6(b)(B), the OMB was given 90 days to complete the review, which expired on May 21, 2004. However, the DOL Chief also disclosed that on May 21, 2004, it requested the OMB to extend the review because of the concerns of fraud raised by its sister/brother federal agencies and apparently part of the regulation were revised. Under the Section 6(b)(2)(C), the OMB was given only 30-day extension, which expired on June 20, 2004.
Why this regulation is still under the OMB review and under what authority? The Section 7 of the Executive Order 12866 states that in the event that there is a conflict among agencies which cannot be resolved by the Director of OIRA(OMB), it moves to the Vice President to resolve the conflict and the President and Vice President make a decision. Under the provision, though, such resolution must be made within 60 days from the referral by the Director. Assumedly, this 60-day also expired on August 20, 2004. The fact that the case is still at the OMB reflects that the OMB could not resolve the conflict and turned over to the Vice President for resolution. Otherwise, the OMB should have completed by June 20, 2004 one way or another. The OMB cannot arbitrarily change the review period. Now the expiration date of the resolution of the issues by the Vice President and the President is gone, and the President must announce his decision. Under the Executive Order, he does not have authority to extend the OMB review any further, Either he should reject the rulemaking or approve it as far as this reporter see the Executive Order 12866. We hope to see such announcement within next week.
Interested persons may read the full text of Executive Order 12866.
 
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