Q.What is PERM?
A. Perm is a big change in the procedures for obtaining the approval of the Department of Labor when applying for a green card through employment. Under the old system, doing a labor certification was very slow. First you had to advertise the job position for six months, then get the approval of the Department of Labor which took two and half years. Then you had to get the approval of Immigration which took about one year, sometimes longer. If everything went smoothly it was a four year process. Sometimes it took longer than that. Under PERM the Department of Labor will normally take only 45 to 60 days instead of two and half years. So people will save a lot of time.
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Q. What are other advantages of PERM besides the fact that people's waiting time is much shorter?
A. Other advantage is a quick decision from the Department of Labor will help when people apply to the Immigration.One of the main reason cases are denied when they reach the Immigration is the Immigration says the employer didn't have enough income on their tax return during the two and half years the labor certification was pending. Under the new system the labor certification will be pending only 45 to 60 days not two and half years. So if you plan the case carefully it will be a lot easier to show the Immigration the employer had enough money to cover the employee's wages for 60 days than it is to show the employer had enough money to cover the employee's wages for two and half years.
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Q. Any disadvantages under the new system?
A. The wage that is required to be paid will probably be a little higher. Under the old system the department of labor determined the minimum wage for each job and the employer had to pay 95% of that wage. Under the new system the employer has to pay 100% instead of 95%.
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Q.How about people who have already applied under the old system.Can they switch to the new system, PERM?
A. Yes they can.You have to withdraw your first application and apply under the new PERM system. For most people you will speed up the processing. If you're already at the end of the regular processing then it would make sense to stick with the old system. For everyone else they will probably get a faster result switching to PERM.
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Q. How does the PERM process work? What are the steps that need to be taken?
A. Please see out link to the PERM process. The first step is the attorney has to request a prevailing wage determination from the EDD Employment Development Department. They have different wages for different jobs and for different levels of experience. They do not want foreigners coming to the U.S. and taking jobs away from Americans because they are willing to work for less money. The attorney has to describe the job duties in detail. It usually takes about ten days to get the wage although sometimes it is faster and sometimes it is slower depending on how busy the State Wage Agency is and on how complicated the case is.
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Q. When you get the prevailing wage does the employer then start paying that wage?
A. Sometimes yes and sometime no.This is the wage the employer must pay after the green card is received. However one Immigration rule is the employer has to be able to pay the wage from the date the case is filed with the department of labor. So if the person is allowed to work for example if the person has H-1 or a work authorization card or if they qualify under 245(i) then it is a good strategy to receive the amount the EDD determines at the time the PERM is filed. If the person does not have work authorization then you have to plan the case carefully to be able to show the employer had the money to pay the wage at the time your PERM case is filed.
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Q.After the wage is determined what comes next?
A. Then the employer must advertise the job position in the newspaper and on the EDD's website. Under PERM there are different advertising rules depending on whether the job is a professional job or a non-professional job. A professional job requires more advertising. When the advertising is done a report must be written describing what was done and what the results were. Then the PERM case can be filed.
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Q. How will people know if their job is professional or non-professional?
A. If the Department of Labor thinks the job requires a college degree it is professional. If the Department of Labor doesn't require a college degree it is non-professional. The attorney has to figure this out before we start the case. Sometimes it is easy, accountants, engineers, architects, teachers, they are clearly professionals. Cooks and secretaries and Nannies are clearly not professionals. Certain jobs depend on various factors.
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Q. When does the new PERM system start?
A. The first date applications can be submitted will be March 28, 2005. However before you file you must advertise during the prior six months. So you can do the prevailing wage and start advertising now and file at the end of March when the advertising is finished. Actually six months is the maximum amount of time allowed for advertising. It can be shorter. Most people should be able to do all their advertising in two or three months.The rules were published on December 27th and the starting date for filing is March 28th.
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Q. What are some of the problem areas people should look out for under the PERM system?
A. 1) The company that is sponsoring you should have a record of having had employees.The department of labor is worried that people will create a corporation only on paper and use it to sponsor someone.So they will check to see if the company has a payroll account with the Employment Development Department.I doubt if this will be a problem for individuals who want to sponsor a Nanny.But it could be a problem for new companies.They should establish a payroll account before they sponsor someone.
2) The department of labor has to agree that there are insufficient U.S. workers who are able, willing, qualified and are available.The employer advertises and then signs a form saying either no one applied for if people did apply they were not able, willing, qualified or available. Normally the department of labor accepts the employer's statement. However they have the option to make the employer advertise again.Then the department of labor will supervise the advertising.Most people are expecting this supervised advertising to be done in only a small percentage of the cases.We will have to wait and see how often they do this.
3)The whole process is a little easier if you are legally working for the company that is sponsoring you.Working for them at the time you apply isn't required but it helps at the end of the case. A lot of people who have H-1 or people whose spouse has E-2 or L-1 can work legally. It makes their green card case stronger.
