05/01/2003: PERM Labor Certification Schedule and Planning Problem
The latest news indicate that the DOL will more likely start the new labor certification system, PERM, on October 1, 2003 and is currently finishing up technological and administrative arrangement. The sources of information also indicate that the earliest date the either interim or final PERM regulation will be published is July 2003 but legally inasmuch as it is published by September 1, 2003, DOL will be able to go ahead starting the new system on October 1, 2003.
This regulation publishing schedule and PERM start date present a problem to the employers who wish to initiate the recruitment process before October 1 to target filing a new labor certification application or convert existing application under the new PERM labor certification system, because apparently the new system will demand a different type of advertisements and recruitment process than the current RIR or conventional labor certification system. DOL official hinted that once the PERM program launches, the employers may have to "upgrade" recruitment process, implying that additional advertisement campaign may be necessary after October 1, 2003. The only information available at this point is the already-published "proposed PERM regulation," which reflects a different type of advertisement required for the new system. No one knows, however, whether the final regulation will keep the proposed regulation on this issue or there will be further changes.
The foregoing information suggests that too premature recruitment campaign spending tons of expenses may end up wasting money for no purpose unless the employer is targeting at filing both RIR application before October 1 and PERM application after October 1 since the only ads which they can use are those which are less than 6-month old at the time of each filing.
Another issue which is relevant to the transition is DOL policy on conversion from existing RIR or conventional regulation application to PERM application after October 1, 2003. Conversion is extremely important for those who need the 7th-year extension of H-1B or 245(i) filers as withdrawal of existing application in order to file a new PERM application may kill the eligibility for 7th year H-1B extension under so-called DOJ Authorization Act of 2002. For these aliens, keeping the priority date is extremely important not because of the potential regrogression of priority dates in the Visa Bulletin in the future but because of the need for keeping the benefit of 7th year H-1B extension or 245(i) benefit. The problem is that DOL hints that the conversion may require "upgrade" and upgrade may require a new filing. There is some indication that the PERM regulation may still allow keeping the priority date when existing case is converted by upgrading recruitment process and filing a new application with the request for retaining the priority date, unless the additional upgrading recruitment campaign include certain material changes that can be construed as a different occupational classification. We really hope that the PERM regulation incorporates such safety valve for the candidates of 7th-year extension or 245(i) applicants.
Please stay tuned to this web site for the development of PERM program.
The latest news indicate that the DOL will more likely start the new labor certification system, PERM, on October 1, 2003 and is currently finishing up technological and administrative arrangement. The sources of information also indicate that the earliest date the either interim or final PERM regulation will be published is July 2003 but legally inasmuch as it is published by September 1, 2003, DOL will be able to go ahead starting the new system on October 1, 2003.
This regulation publishing schedule and PERM start date present a problem to the employers who wish to initiate the recruitment process before October 1 to target filing a new labor certification application or convert existing application under the new PERM labor certification system, because apparently the new system will demand a different type of advertisements and recruitment process than the current RIR or conventional labor certification system. DOL official hinted that once the PERM program launches, the employers may have to "upgrade" recruitment process, implying that additional advertisement campaign may be necessary after October 1, 2003. The only information available at this point is the already-published "proposed PERM regulation," which reflects a different type of advertisement required for the new system. No one knows, however, whether the final regulation will keep the proposed regulation on this issue or there will be further changes.
The foregoing information suggests that too premature recruitment campaign spending tons of expenses may end up wasting money for no purpose unless the employer is targeting at filing both RIR application before October 1 and PERM application after October 1 since the only ads which they can use are those which are less than 6-month old at the time of each filing.
Another issue which is relevant to the transition is DOL policy on conversion from existing RIR or conventional regulation application to PERM application after October 1, 2003. Conversion is extremely important for those who need the 7th-year extension of H-1B or 245(i) filers as withdrawal of existing application in order to file a new PERM application may kill the eligibility for 7th year H-1B extension under so-called DOJ Authorization Act of 2002. For these aliens, keeping the priority date is extremely important not because of the potential regrogression of priority dates in the Visa Bulletin in the future but because of the need for keeping the benefit of 7th year H-1B extension or 245(i) benefit. The problem is that DOL hints that the conversion may require "upgrade" and upgrade may require a new filing. There is some indication that the PERM regulation may still allow keeping the priority date when existing case is converted by upgrading recruitment process and filing a new application with the request for retaining the priority date, unless the additional upgrading recruitment campaign include certain material changes that can be construed as a different occupational classification. We really hope that the PERM regulation incorporates such safety valve for the candidates of 7th-year extension or 245(i) applicants.
Please stay tuned to this web site for the development of PERM program.