LEGAL AND ILLEGAL ALIENS - PERM, RIR, TRADITIONAL OR NO LABOR CERTIFICATION PROCESSING? (Part I) *

By Alan Lee, Esq.^†‡

The Department of Labor's December 27, 2004, final rule implementing its Program Electronic Review Management's (PERM) program has surprised many in the immigrant community with the number of positive differences from the proposed rule of 2002. The major differences are as follows:

-- The proposed rule would have forced the two Sunday ads (run in the newspaper best suited to attract U.S. workers in the occupation) for labor certification advertisements to be spaced 28 days apart. The final rule only requires 2 Sunday ads and they can even appear on consecutive Sundays. However, all advertising must be done within 180 days and no sooner than 30 days prior to the filing of the new application for labor certification, form ETA 9089.

-- The proposed rule stated that jobs requiring an advanced degree and working experience would have to be advertised in a professional journal. The final rule makes this optional with employers.

-- The proposed rule required that the advertising contain the wage to be paid. That is now optional under the final rule.

-- For professional positions in which a bachelor's degree or higher is usually required, the proposed rule stated that in addition to the 2 Sunday ads, job order, posting on the company premises, and posting in all in-house media, the organization would have to perform 3 additional pre-filing recruitment steps from professional recruitment channels such as the employer’s website, job search websites, private employment firms, job fairs, trade or professional organizations, and on campus recruitment. While retaining these steps, the final rule simplifies the three alternate requirements by allowing the employer's website and newspaper website run in connection with the Sunday ad to be counted as separate forms of alternate recruitment, the latter as an independent Internet job site. The final rule also adds other forms such as referral programs, radio and TV ads, local and ethnic newspapers (to the extent that they are appropriate to the job opportunity), and notice of job availability at the campus placement office in jobs requiring a degree and no experience.

-- The proposed rule discouraged the use of a business necessity argument to justify a foreign language requirement although the Department of Labor did say that it was looking to develop law for when and how the requirement is utilized. The final rule is much more positive on the use of foreign language to the point that it can be justified by the employee's need to communicate with fellow workers. Such a reason has been almost uniformly rejected in past years.

-- The proposed rule discouraged the business necessity argument when the jobs to be certified had a combination of duties involving more than one occupation. Traditionally employers had argued that they were constrained by circumstances within the organization so that employees had to handle duties that crossed over into other occupations. The proposed rule said that employers had to document that they had employed another person within two years with the same combination or that workers customarily performed a combination of duties in the area of employment. The final rule allows the employer to continue to justify a combination of duties as a business necessity.

-- The proposed rule would have done away with attempting to use experience gained with the same employer in a dissimilar job or attempting to justify the use of the experience through business necessity, eg-the employer has grown rapidly and it is now infeasible to train a new person whereas at the time that the alien was hired, the organization was able to train. Both arguments to use prior experience with the same employer are preserved. For dissimilar positions, the job duties must be different by 50% or more from the previous position.

-- The proposed rule would have no longer allowed an employer to reject a U.S. worker if the candidate did not meet every employer requirement. So long as the U.S. citizen worker could perform the job in a normally accepted manner or acquire skills within a reasonable period of time, the candidate should be accepted. The final rule was modified to allow employers to continue rejecting U.S. workers as not qualified who do not meet the employer's requirements, e.g. degree or amount of experience, but that skills which can be learned within a reasonable period of time cannot serve as a valid basis for rejection.

-- The proposed rule would have disallowed the use of alternate experience for an alien to qualify for a labor certification. The final rule allows use of alternate experience but only where the employer indicates that applicants with any suitable combination of education, training, or experience are acceptable.

-- The proposed rule would have absolutely disallowed any employer requirement in excess of the education, training and experience called for in the Specific Vocational Program level assigned to the occupation as shown in the O* Net job zones. (O*NET, the Occupational Information Network, is a comprehensive database of worker attributes and job characteristics. As the replacement for the Dictionary of Occupational Titles(DOT), O*NET will be the nation’s primary source of occupational information. The Department of Labor determines whether the training and experience requirements are normal under O* Net and the O* Net job zones assign the amount of specific vocational preparation to the occupation). The final rule allows requirements in excess of the normal levels to be justified by the business necessity of the employer.

With the thought in mind that the PERM program is palatable, the question for many is still whether to wait and file under the PERM program or to file under the present traditional or reduction in recruitment (RIR) labor certification methods.

A traditional labor certification application involves no recruitment at the beginning, but supervised recruitment when the State Workforce Agency (SWA) reaches the case for processing, and then a 10 day posting and either three day ad including a Sunday in the newspaper most likely to attract U.S. workers for the occupation or an appropriate journal. An RIR application involves pre-advertising through 1 or 2 newspaper advertisements or one journal advertisement, posting for 10 days, and any further recruitment efforts that the employer wishes to show the Department of Labor in support of its bonafide recruitment efforts for U.S. workers. The entire application along with proof of recruitment and results are submitted to the SWA. PERM contemplates pre- advertising consisting of 2 Sunday ads in the newspaper most likely to attract U.S. workers to the occupation (or if the employer chooses, one journal ad in jobs requiring experience and an advanced degree), posting for 10 business days, use of all in-house media to advertise the position, and a 30 day job order with the SWA. In addition, PERM will require three additional forms of recruitment for professional cases from the list as stated above. PERM applications will be filed directly with the DOL with a new form, 9089, and the documentation of recruitment will be kept by the employer, subject to audit.

A traditional labor certification has historically taken the longest period of time to process in most parts of the country, and RIR applications have been generally faster. PERM promises to be much faster than either method, with a labor certification adjudication coming within 45-60 days of filing. A caveat is that the Department of Labor is currently at the beginning of a backlog reduction program which will likely significantly speed up processing of traditional and RIR labor certification applications in the future.

(To be continued soon on this website)

† The author is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof.

‡ This article © 2005 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
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