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Proposed rules affecting the labor certification process for employers seeking to employ foreign workers permanently in the United States are about to emerge, according to the Department of Labor’s (DOL’s) recently released regulatory agenda.
The White House’s long-promised proposal modernizing the permanent labor certification process (PERM) and a new proposal to collect information on updating the DOL’s Schedule A list determining whether an industry has a worker shortage will be issued by the end of the month.
The PERM proposal is one of the last elements of President Barack Obama’s November 2014 executive action on immigration.
The PERM labor certification process—first created in 2004—is the first step for most employers sponsoring foreign workers under an employment-based permanent residence visa. Under the regulations, the employer must conduct recruitment through newspaper ads, Internet postings, the state job bank and other recruitment sources as outlined in the rules to prove that there are no available and interested U.S. workers for the position.
“The DOL intends to publish a new regulation to better align the PERM program with the objectives of the immigration system and the needs of workers and employers, including updating recruitment methods, addressing the correction of minor errors in applications, and disclosing application outcome to immigrant workers,” said Susan Cohen, founder and chair of the immigration practice at law firm Mintz Levin, based in Boston.
“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,” Cohen said.
Some of the most frustrating issues include the lack of expedited processing, the inability to correct technical errors, and the use of outdated and expensive modes of recruitment, such as newspaper print ads. “The current recruiting profile is not adequate, no question about it,” said Bill Thompson, acting administrator of the DOL’s Office of Foreign Labor Certification, which governs the process. The agency is considering allowing employers to use more of a variety of recruiting dissemination options, he said.
The biggest change to the program will most likely be the introduction of fees. Currently there is no fee attached to a PERM application.
“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,” Cohen said. She hopes that a premium processing option and accompanying fee will be introduced but is not optimistic that will happen.
The DOL could begin collecting fees in 2017, according to Thompson. “Collecting fees is a big deal,” he said. Fees would enable the agency to “hire more people, more IT, faster processing, more stakeholder engagement, enhanced customer service and ultimately to create a world-class system.”
Adding to Schedule A?
The DOL said it will issue a proposed rule requesting information from the public on whether the Schedule A list of occupations for which employers don’t have to test the labor market before hiring an immigrant worker is effective. The department is also seeking to create a “timely, coherent, and transparent methodology” for identifying occupations that should go on the list.
Schedule A occupations are those for which the DOL has determined there are not sufficient U.S. workers who are qualified and available. These occupations are pre-certified by the DOL, allowing employers to skip the labor certification process and file a petition with U.S. Citizenship and Immigration Services directly, and currently include professional nurses, physical therapists and “persons of exceptional ability in science or arts.”
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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