Analysis of final PERM regulations

M

morpheus12

Registered Users (C)
Here is my quick analysis of the final PERM regs from reading the 322 page document published today by DOL.

- Estimated PERM processing is 45-60 days :)

- Business necessity requirement has been reinstated :D

- Need to publish salary in newspaper advertisements has been removed. Also, ads may be placed on consecutive Sundays (no need to wait 28 days). :)

- They have expanded the list of mandatory employer recruitment to include web advertising, employee referral and a couple of others. :)

Overall it looks pretty good and certainly isn't bad as I had feared. Anyone else got a comment?

Thanks DOL for an early Xmas present. It could have been a lot worse... :p
 
What about SKILL SET. As I know if employee can be trained on job for a perticular skill then it can't be required skill set on application, you cant be more specific on requirement. Is this true / still exists... ?
 
Is it allowed to reapply?

Do you know if we can reapply even though my current employer already applied for my current labor certification back in August? The state I live in is backlogged considerably, so my case most certainly goes to the Backlog Elimination Center...
If my employer can reapply then I'm in good shape, otherwise I may have to wait for a long, long time to get my labor certification approved :mad:
Any insights are appreciated!

Thanks!
 
acgv said:
Do you know if we can reapply even though my current employer already applied for my current labor certification back in August? The state I live in is backlogged considerably, so my case most certainly goes to the Backlog Elimination Center...
If my employer can reapply then I'm in good shape, otherwise I may have to wait for a long, long time to get my labor certification approved :mad:
Any insights are appreciated!

Thanks!
Click to expand...
When the BEC's were established, the plan was that at the time of response to the 45-day letter, if PERM was available, the employer would have the option to continue processing at the BEC, or withdrawing the application and going with PERM. Now that the BEC's have been in operation for 3 months and PERM not slated to go into effect until after the waiting period post publication (spring '05), it hasn't been determined if this option will be available for applications that have been started under the BEC's process. It is still possible that, once PERM is in effect, the option will be offered in future 45-day letters.
 
PERM Published in FED register with Dec 27 date

Go to the following URL
http://www.gpoaccess.gov/fr/

Search for 'PERM' UNDER HEADING 2004 (Volume 69) Only.

The 3 rd document returned in the list will be the PERM regulation.

Open it as a PDF. It is a 100 pages document. It also has the actual application.
 
morpheus12

Also, it looks like we can keep the priority date refile the existing certification. But what I understood after reading 254-260 pages numbers is that the existing LC should have been advertised in the same way as PERM needs, so I am not sure if Regular LC can be refiled in PERM keeping the priority date. Can you share your opinion on this?


morpheus12 said:
Here is my quick analysis of the final PERM regs from reading the 322 page document published today by DOL.

- Estimated PERM processing is 45-60 days :)

- Business necessity requirement has been reinstated :D

- Need to publish salary in newspaper advertisements has been removed. Also, ads may be placed on consecutive Sundays (no need to wait 28 days). :)

- They have expanded the list of mandatory employer recruitment to include web advertising, employee referral and a couple of others. :)

Overall it looks pretty good and certainly isn't bad as I had feared. Anyone else got a comment?

Thanks DOL for an early Xmas present. It could have been a lot worse... :p
Click to expand...
 
knowDOL said:
morpheus12

Also, it looks like we can keep the priority date refile the existing certification. But what I understood after reading 254-260 pages numbers is that the existing LC should have been advertised in the same way as PERM needs, so I am not sure if Regular LC can be refiled in PERM keeping the priority date. Can you share your opinion on this?
Click to expand...

It's not clear to me how an LC advertisement done today could meet the PERM requirements, so I won't venture my opinion. Maybe an attorney could comment.

My current LC application is stuck in the backlog, but I'm going to leave it there and not convert it to PERM. I'm not subject to the visa caps, and having an LC stuck in the backlog is actually good insurance for extending my H1 in case my PERM application got rejected or held up somehow. Basically it means I could keep extending my H1 for a couple of years until the BEC gets around to my old LC.

I am skeptical that the PERM processing will be 45-60 days however. The DOL is going to be buried in PERM applications on March 27th. I suspect PERM will create a new backlog, just in a different location. However, even 6 months wait would be better than the year long wait we have now.
 
Does PERM replace both State and Regional processes of Labor or just State? Once labor is approved thru PERM, does the application directly go for 140?
 
Yes

Yes,
Once PERM process approves the labor you can got for I-140.


dcmetro22042 said:
Does PERM replace both State and Regional processes of Labor or just State? Once labor is approved thru PERM, does the application directly go for 140?
Click to expand...
 
Experiance with the same employer

Reading thru the published PERM regulation, I found that the proposed rule had a requirement that experiance from same employer can not be used for a candidate. That requirement has been withdrawn now. However the new requirement is that, if the employee wants to use the experiance with the same employee, the previous position should be significantly different from the one for which LC is sought.

You can read thru the text in the published document - search for "9. Actual Minimum Requirements"

Also there are note on experiance in a contracting position with the same employer. I would encourage to read 2-3 pages from the above stated search.
 
My view

Here is a link for download ofPERM .

Here is what they say if you are currently employed by the empoloyer and have gained all the expereince from it. The term "feasable" is bit ambiguise.

I also think that the PERM regulations are good. Nothing more restrictive as before. We will see how well the respond in the promised 45-60 timeframe once there is a huge overflow. I changed jobs so none of the bellow applies to me, and I think I will havea very strong case.

Actual minimum requirements.
DOL will evaluate the employer’s actual
minimum requirements in accordance
with this paragraph (i).
(1) The job requirements, as
described, must represent the
employer’s actual minimum
requirements for the job opportunity.
(2) The employer must not have hired
workers with less training or experience
for jobs substantially comparable to that
involved in the job opportunity.
(3) If the alien beneficiary already is
employed by the employer, in
considering whether the job
requirements represent the employer’s
actual minimums, DOL will review the
training and experience possessed by
the alien beneficiary at the time of
hiring by the employer, including as a
contract employee. The employer can
not require domestic worker applicants
to possess training and/or experience
beyond what the alien possessed at the
time of hire unless:
(i) The alien gained the experience
while working for the employer,
including as a contract employee, in a
position not substantially comparable to
the position for which certification is
being sought, or
(ii) The employer can demonstrate
that it is no longer feasible to train a
worker to qualify for the position.
(4) In evaluating whether the alien
beneficiary satisfies the employer’s
actual minimum requirements, DOL
will not consider any education or
training obtained by the alien
beneficiary at the employer’s expense
unless the employer offers similar
training to domestic worker applicants.
 
Also, the print add can be only one sunday paper and one professional jurnal. I guess the add and the job order must be 30 days apart, but the advertisement timeframe diference is not specified.
 
AlekM said:
Also, the print add can be only one sunday paper and one professional jurnal. I guess the add and the job order must be 30 days apart, but the advertisement timeframe diference is not specified.
Click to expand...
"The new system requires employers to
conduct recruitment before filing their
applications. Employers are required to
place a job order and two Sunday
newspaper advertisements." (emphasis mine) Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations, p.77327

Just to clarify :rolleyes:
 
I agree that this is a lot better than it could have been. Because they allow experience in different jobs, this is good for H1's who have been with an employer and got promoted over time to new jobs, as they can count some of their experience.

The restrictions against contract workers experience are still annoying, but not a major issue for me.

AlekM said:
Also, the print add can be only one sunday paper and one professional jurnal. I guess the add and the job order must be 30 days apart, but the advertisement timeframe diference is not specified.
Click to expand...

Good point. It just says 'two different Sundays' for two newspaper ads. Maybe you can assume that the journal ad could be done at the same time as the Sunday ad?
 
If the job involved in the
application requires experience and an
advanced degree, and a professional
journal normally would be used to
advertise the job opportunity, the
employer may, in lieu of one of the
Sunday advertisements, place an
advertisement in the professional
journal most likely to bring responses
from able, willing, qualified, and
available U.S. workers. Documentation
of this step can be satisfied by providing
a copy of the page in which the
advertisement appeared.
 
Icarus said:
"The new system requires employers to
conduct recruitment before filing their
applications. Employers are required to
place a job order and two Sunday
newspaper advertisements."
Click to expand...
Keep reading:

(4)If the job involved in the
application requires experience and an
advanced degree, and a professional
journal normally would be used to
advertise the job opportunity, the
employer may, in lieu of one of the
Sunday advertisements, place an
advertisement in the professional
journal most likely to bring responses
from able, willing, qualified, and
available U.S. workers.
 
Hm, now by reading it once more I noticed that it says "experience and an advanced degree". So if you require only experience, but not an advanced degree you don't need a ad in a journal?
 
What about this?

I am too thinking about filing under PERM. My RIR was filed under EB3 in July 2004. Will it be possible to file a new application under PERM with higher requirements to push me up to EB2?

The reason for filing EB3 was due to wage issue. Now with the newly proposed 4 level wage system, do you think it will be easier to satisfy the prevailing wage requirements?

Also what about the part that states if a willing US worker can be trained on the job, etc? With a small business as my company, they can't afford to train a person with less experience for any period of time.

Thanks.
 
AlekM said:
Hm, now by reading it once more I noticed that it says "experience and an advanced degree". So if you require only experience, but not an advanced degree you don't need a ad in a journal?
Click to expand...
I would think the two Sunday ads would suffice. As the rule mentions in the public comment section, it would be difficult to advertise in a professional journal for many professions, i.e. farmworkers, restaurant help, etc.
 
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