A Dozen Years of PERM – A Practitioner’s Perspective
I was first exposed to the labor certification process in 2001 while working as a legal assistant in Tucson, Arizona. The labor certification involves an employer’s test of the U.S. labor market through various recruitment steps mandated by the U.S. Department of Labor (DOL). At that time, post-filing pending labor certification issues, like typos or wage adjustments were handled informally by calling the State Workforce Agency. In 2005, the DOL announced that it would improve the labor certification process by eliminating backlogs and processing labor certifications within a couple weeks with a new re-engineered Program Electronic Review Management (PERM) process.
By the time I started to practice immigration law as an attorney in 2006, PERM was in full effect and was already shaping up to be a more lengthy and unforgiving process than traditional labor certification. Fast-forward to today, more than a decade since the PERM process has been in effect, and you’ll find many attorneys have figured out how to file PERMs effectively while honing their instincts and developing best practices to avoid pitfalls. “Cracking the code” of the PERM process is one analogy that fits, but it has taken us at least 12 years. Now, the shifting climate in immigration law and practice has created even more uncertainty. In light of these ever-changing shifts, it has never been more important to try and anticipate emerging PERM-related issues.
When the I-485 Supplement J form was announced in January 2017, many practitioners thought, “no big deal, maybe this will make porting an I-485 green card application easier under the American Competitiveness in the 21st Century Act (AC21).” We were thinking positive. However, we did not anticipate that U.S. Citizenship and Immigration Services (USCIS) would require in-person interviews for all employment-based green card applicants, people who have already been vetted, screened, and approved at various points in the immigration process, and that the Supplement J form would become so important. Nowadays, practitioners should be particularly careful when preparing PERM applications to keep the Supplement J form in mind as a tool for the applicant, so that the PERM job can remain viable and transcend potential job changes. Practitioners should help companies formulate job descriptions and minimum requirements to survive technology and industry developments over the course of 7-15 years for employees from countries facing significant immigrant visa backlogs.
Recently, because of various changes in policy, there has been an increase in H-1B visa petition denials. Immigration attorneys must closely analyze DOL data and occupational codes to anticipate potential challenges since codes and job requirements vary across processes. Although the PERM Labor Certification process is for a prospective employment opportunity, it is smart to prepare supporting evidence if the PERM and H-1B occupational codes are different.
Luckily, attorneys have been able to develop successful strategies, thanks to more than 12 years of PERM experience to lean on, coupled with innumerable Board of Alien Labor Certification Appeals (BALCA) decisions, PERM FAQ rounds, DOL liaison minutes and guidance found in AILA resources. We’re also lucky attorneys are willing to share their experiences to help others improve their own practices when navigating the PERM process. The best opportunity you’ll have to improve and refine your processes is at the AILA PERM Conference and Webcast, taking place on December 7 in Washington, D.C. The conference will bring together PERM experts’ collective experience and will showcase a spectrum of practical tools to help attorneys of all experience levels obtain successful results. Plus, we will also have the opportunity to hear from officials from both BALCA and Office of Foreign Labor Certification (OFLC). Come join us in person or check out the conference via webcast!