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Monday, December, 7, 2009

Unemployment Hits PERM Market, As Well: Immigrant Worker Certifications In A Down Economy

With new unemployment numbers at 10.0% (with alternate, though unofficial Bureau of Labor Statistics estimates as high as 17%), to think that any area of the economy has not been hit would be naïve. To think that the (lawful) immigrant labor market has not been hit would be, well, unthinkable. And indeed, along with the rise in unemployment, the waiting time for the Department of Labor (DOL) to adjudicate Program Electronic Review Management (PERM) certifications has skyrocketed (from the normal 45-60 days to six-to-nine months and more).

Without a PERM certification, there is no employment-based immigration. Your clients who have specific employment needs that cannot be fulfilled by the domestic labor force rely on PERM certifications to supplement that force. But when unemployment is at levels not seen in decades, well, you can imagine it may be much more difficult and time-consuming for the DOL to determine, as it must, that there is no available citizen to do a job. And what's more, DOL makes determinations of worker availability long after an employer requested them, which means the labor market may have changed yet again. Yet your client's needs may still be going unmet. So how can an employer get some PERManent help in a job market that is, at least temporarily, on shaky ground?

Compliance with PERM in a Down Economy, by Catherine L. Haight (Haight Law Group) and Eleanor Pelta (Morgan, Lewis & Bockius LLP) is an interesting look at the PERM certification dilemma, the impact of layoffs on the PERM process and a little-known facet of the PERM regulations called "supervised recruitment," a process DOL is increasingly turning to in handling the current situation. Supervised recruitment is provided for by 20 CFR 656.21: "Where the Certifying Officer determines it appropriate, post-filing supervised recruitment may be required of the employer for the pending application or future applications pursuant to 20 CFR 656.20(b)."

In essence, supervised recruitment rolls back the advances implemented by PERM, so that the DOL handholds compliance with the recruitment process, especially in terms of determining whether there are available workers. As the authors report, this can become fairly onerous, and they clue you in on exactly what your clients can expect. There is no simple solution. As they note in conclusion: "U.S. worker availability is directly connected to the labor certification process and an increase in availability inherently means some decrease in approvable PERM cases. The issue of whether the test of availability should be made at time of filing or at time of adjudication has been decided by DOL as the latter and DOL has launched Supervised Recruitment in an effort to conduct a second check of availability in light of the new market conditions. Employers and practitioners should carefully review the regulations governing Supervised Recruitment and gain guidance from the DOL FAQs, in order to navigate through this new and untested area of PERM processing."

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