Sunset of Current Labor Certification System and Last-Minute Strategy Before the Suns
Now, the launch of the PERM program is less than 10 days away, and the curtain will come down for the current labor certification system as of the mid-night of March 27, 2005. As of today, it appears that two things may be clear. First, there will be practically few PERM cases that can be filed before the end of March 2005 because of the last minute release of the DOL policies in the form of Q&A and the current practical unavailability of the 4-level prevailing wage determination by the SWAs nationwide. It appears that the SWA people have been invited to a meeting for the training of the 4-level wage determination on March 24, 2005, and pending the training, the SWAs seem to be reluctant to give out the 4-level prevailing wage determinations. Because of the PERM system that requires completion of the recruitment process, including job order, at least 30 days prior to physical filing of the applications, practically filing of any PERM cases may be either impossible or close to impossibility for the two reasons. One is that certain recruitment step such as job order requires at least 30 days, practically requiring minimum of 60 days prior to filing of the PERM application on March 28, 2005. Thus unless the job order was filed in the middle or early of January 2005, no one can file a PERM application on March 28, 2005. Secondly, the employers' recruitment process has been delayed because of the unavailable prevailing wage determination under the four-level wage system which took effect on March 8, 2005. In fact, the details of the definition and the formula for determination of the four-level wages was "not" made available until March 8, 2005!!! Such action of the DOL has invited a potential failure of the PERM system at least at the initial phase of the program. On top of such timing factors, the DOL policy has created "fear factor" for refiling or for that matter, even new filing, under the PERM system. Knowledgeable experts also predict that the DOL may intensify "audits" at the initial phase of the PERM system in order to demonstrate to the community and political forces that the PERM system would not invite rampage of fraudulent filings.
By now, we have learned that the PERM application is not as sweet as we have expected. The situation makes us to rethink of filing of the labor certification applications before the current system is terminated at the end of the day of March 27, 2005. Judging from the information which was released by the DOL in the form of Q&A, it appears that dual filings of labor certification may be available, one under the current labor certification system and the other under the PERM system, and one does not see any harm or to lose anything to consider such dual filings for the safe side. At this point, RIR filing is out of question because of the prevailing wage determination and 10 business day notice posting requirement. However, the conventional "regular" labor certification application is still available and will remain available until the mid-night of March 27, 2005. Unlike the RIR or PERM applications, all it takes to file a regular labor certification application is to complete two sheets of application forms, ETA 750 Part A and Part B in duplicate. Such filing will also give a chance for the employers to wait and see how the PERM system operation will unfold. The point is, however, that March 27, 2005 will mark a "bridge of no return" and unless the ETA 750 is filed before March 28, 2005, this opportunity under the current labor certification rules and laws will permanently evaporate.
Considering the fact that EB-3 visa numbers may retrogress worldwide at some point in the future and even EB-2 for some nationals may retrogress in the future, it is going to be a long journey for the labor-certification based immigration. This makes the PERM labor certification reengineering less attrative to some extent, more or less, as the certification of labor certification will not give any benefits while they wait for the visa numbers. The 7th year extension of H-1B will remain open for the H-1B professionals regardless of certification inasmuch as 365-day passes after filing of the labor certification application. "Certification" as opposed to "pending" would not give any edge when it comes to the USCIS proceedings other than that labor certification application approval will allow the employers to file I-140 petitions. It is too sad to see the PERM program moving into a dark cloud. The PERM program would have been successful, had it launched earlier and in the right directions. The DOL has failed in both of these. By now, everyone knows that "conversion" or "refiling," whatever one may call it, may remain only in the black letters without much meaning, at least for the foreseeable future. The PERM program will fail to achieve the goal of reducing the backlogs which have ailed the labor certification system of this country for years.
For the next eight or nine days, the labor department may rather see the flood of regular labor certification applications pouring in, exacerbating the ailing foreign labor certification system of the nation. We hope the best for the DOL leadership.
source:immigration-law.com
