On Monday, new PERM regulations go into effect. The reasons for the regs, according to the Department of Labor are twofold: (1) to avoid fraudulent submissions; and (2) to add to the employer’s burden of sponsoring a foreign national to make certain that the employer REALLY wants to go through with the time, effort and money required to engage in the process of sponsoring an employee.
Although the goals are understandable, some of the requirements mandated by the rules arguably discriminate against smaller employers, unduly interfere with the attorney-client relationship or simply add additional constraints to the already restrictive and complex process of obtaining permanent residence through employment.
Effective Monday, July 16:
A. Employers must pay all attorney fees and other costs related to the PERM process. Although employees may hire their own separate counsel, the DOL argues that PERM is an employer-based process and all associated costs should be paid for by the employer. The regs and comments stipulate that the employee may not: (1) reimburse the employer or (2) have the PERM related costs taken from his or her salary (even if the difference between the offered and prevailing wages exceeds the costs of the PERM process).
As a result of this regulation, lawyers have been asking what exactly constitutes the “PERM” portion of an entire employment-based immigration process. Can a lawyer offer to do PERM pro bono for the employer and only represent the employee? There will likely be an FAQ issued by the DOL clarifying some of these issues. This restriction on who pays what is only applicable to the PERM process, not at the I-140 or I-485 stages. The penalties for noncompliance are severe and include debarment from the PERM system for employers and attorneys.
B. Certified PERM applications will expire 180 calendar days after certification. This means that a Form I-140 must be filed within that time or the Labor Certification process would have to start again from scratch.
C. Employer substitution of aliens on labor certification for the purpose of filing an I-140 petition will no longer be allowed.
My two cents:
Smaller employers who are willing to sponsor a foreign national and already agree to go through the paperwork, advertise, interview job applicants, and sign attestations on the application, disclose their tax returns and other financial documents to the CIS, as of Monday will have to pay attorney fees as well, even if the employee would have been willing to pay.
The 180 day shelf-life for PERM applications will serve to rush employers through the process. There are often strategic reasons for waiting to file an I-140, now everyone will be on the clock.
Finally, considering the length of time the process takes and how some job mobility is desirable in today’s day and age, to not allow an employer with an unused approved labor certification for a particular position to replace one candidate with another qualified foreign national is just another draconian measure causing undue burden and expense to employers and immigrants.
Next rant will be about the CIS filing fee increase effective July 30.
