By Eleanor Pelta, AILA First Vice President

Our labor certification system requires a U.S. employer to undertake an individualized test of the local labor market for availability of qualified U.S. workers for a particular position before offering the position to a foreign national candidate. This common first step in the green card process for employer-sponsored immigrants has been around since the days when putative immigrants waited abroad for the completion of the entire process before entering the U.S. (which, at that time, didn’t take ten years or more.) The architecture of the system may have made sense back then; it doesn’t now.

The Department of Labor views the labor certification system, now known as “PERM,” as a process through which it can implement its mission to protect U.S. workers. While it is clear that this is one of DOL’s central responsibilities, I view the PERM process as more than this. DOL must protect the wages and working conditions of U.S. workers and ensure that they are treated fairly and that opportunities for employment for such workers are maximized. DOL must also enable U.S. employers to access skills and talents that are not present in the U.S. labor market. U.S. employers are users or, if you will, customers of the system. Our economy benefits by DOL’s ability to nimbly and effectively walk the line between safeguarding the U.S. labor market and recognizing the legitimate needs of U.S. employers for talent to help them grow and adapt. Unfortunately, the current PERM system accomplishes neither goal.

Due in equal part to the very persnickety PERM regulations and undue processing delays, the PERM labor market system has become a game of “Gotcha” for employers. They are expected to undertake a complex and expensive recruitment campaign which is completely divorced from the way employers recruit in the “real world” (newspaper ads? paper postings?) Any ministerial error in the completion of the PERM attestation form –even one that bears no relationship to the recruitment for U.S. workers that the employer actually undertook–can be a basis for denial. Did the employer fail to put its name or the job location in its internal posting? Gotcha! Denied, even though the internal posting is done at the job site itself. Was there an error on the dates of advertising on the PERM form? Gotcha! Denied, even though the employer might have provided, on audit, proof of the correct dates.

There are also additional “rules” that seem to emerge through DOL adjudication and FAQ’s, a veritable field of land-mines for the unwitting employer. There is general confusion as to how to describe alternate job requirements on the PERM form, and employers are legitimately concerned about this, given that the wrong word formulation can lead to a denial. Gotcha! There has been a spate of recent PERM denials based on a surprising new policy decision by DOL, that employers may not use wage ranges that begin with the prevailing wage at the lower end and include the offered wage, a clear but unannounced departure from prior practice. Gotcha! An AILA member recently reported a PERM denial because the foreign national did not currently work for the employer. Gotcha! There has never been a requirement that the foreign national currently work for the sponsoring employer, but DOL seems to be taking a new tack here as well.

Apart from the inherent problems with the inflexibility of the system, its inability to allow employers to correct errors and provide explanations, and the lack of adjudicatory predictability, these denials –which have nothing to do with the essential question of whether the employer conducted a fair and valid recruitment campaign –become extremely problematic for employers because they arrive after 9 months of adjudication time—or much longer if the case is denied after an audit. While the denials state that the employer is free to re-file rather than appeal the decision, a denial after such a lengthy adjudication time puts the employer in the position of choosing between a lengthy appeals process (2 years or more) with an unpredictable outcome and the burden and expense of a new PERM, including a new recruitment campaign, as the original ads will certainly be stale. DOL’s statement encouraging employers to refile would be more welcome and less laughable if PERMs were adjudicated within several weeks, rather than several months, so that employers could correct errors without having to re-advertise.

Clearly, PERM has become a ponderous, lengthy and unduly complicated process. It is difficult to see how PERM’s twists and turns help a U.S. job seeker. Clearly a determination after months or years as to whether an employer followed the PERM regs to a “T” does little, if anything, to protect the wages and working conditions of U.S. workers. To the contrary, it may impede the retention of key talent that could ultimately pave the way for additional job growth and opportunity. Moreover, PERM is costly and employer-unfriendly.

DOL could fix the PERM process in many ways to make it more sensible for employers and fair for U.S. workers. After all, the entire architecture of PERM—the concept of employers doing individualized, highly structured labor market tests for each job opportunity—is a DOL creation — the details we are dealing with are not mandated by statute. The statute from which PERM is derived is literally one short section in the INA that states that a foreign national seeking to enter the U.S. permanently to work in a skilled or unskilled occupation is inadmissible unless the Secretary of Labor determines that there are insufficient U.S. workers for the opportunity and the employment of the foreign national won’t adversely affect the wages and working conditions of U.S. workers. Think about how many different systems might be set up to accomplish this goa1! For example, DOL could look at the real-world recruitment that was done prior to the initial hiring of the foreign national (remember RIR?), and, if the recruitment is satisfactory, exempt the employer from any further recruitment.

However, DOL won’t fix the system, because it has too much money and effort invested in the current process. We desperately need a system that works in both good economic times and tough ones—a system that is both respectful of employers needs and protective of U.S. workers. That means that it is up to Congress to take a look at labor certification and see if there is a better way to accomplish these goals.