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A Preview of Business Immigration in 2016: Modernizing PERM (Part 6/6)

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our sixth and final post we will discuss the potential modernization of PERM, the labor certification process. 

A Brief History of PERM

2015 marked the 10th anniversary of the implementation of the Program Electronic Review Management ("PERM"). The regulations, first published in 2014, govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department of Labor (DOL) has not comprehensively examined and modified these certification requirements and process since their inception. In June 2015, however, the DOL made the PERM labor certification process the focus of its Regulatory Agenda.

The Future of PERM According to the DOL

Over time, demands for labor have increased, and surpluses for various types of workers have changed. This past fiscal year, employers submitted over 70,000 PERM applications on behalf of foreign workers. The majority of those job openings were for professional occupations in the Information Technology and Science fields. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the DOL has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.

To respond to change, the DOL has announced the goal of initiating a review of the PERM program and relevant regulations. As part of this review, the DOL aims to seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce. Although it is not a sure bet the DOL will make good on this initiative anytime soon, the agency could publish new regulations for the PERM program as part of the final work of President Obama's administration.

The White House Opinion

The White House did state in a report issued last summer that the DOL plans to put out a rule on PERM, which could include updating recruitment methods and tackling the correction of “minor errors” in applications. Currently, mandatory recruitment steps still include using Sunday newspaper advertisements or professional journals, despite the prevalence of online job websites.

Our Prediction

There are several potential changes on the horizon for the PERM process. We expect the primary reform to be the introduction of a fee structure. This may come in the form of a filing fee for the PERM case and/or a fee for the filing of a prevailing wage request at the beginning of the labor certification process. We hope that a premium processing option and accompanying fee will be introduced as part of any new fee and processing structure, but are not optimistic that a speedier processing option will be introduced soon.

Parnia Zahedi assisted with this post.

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