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Joel Stewart on PERM Labor Certification

The Unbelievable Lightness of PERM

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I was listening to the AILA Conference tapes (June 2010) in my car, and came across a session on I-864 Affidavits of Support. The speaker stated that the I-864 Affidavit of Support is just about the most troublesome form in all of Immigration-land, along with the Perm Form 9089!

I was struck by this comment. PERM is something we live with, work with and struggle with. The inconsistencies, glitches, electronic deceptions have mostly been justified, but it's a minefield. Those of us who take PERM for granted don't realize how unusual the form is.

And that must be why I have taken so much time reviewing a PERM case that came across my desk for comment from another lawyer. It involves training, diplomas in technology from Germany, and evaluations of international diplomas and transcripts that defy the US Government definitions.

Remember, that if your application is approved directly, everyone will be happy, but if it goes to an audit, and then gets approved, it will take years to resolve, and even with an approval in hand, nobody will be very happy about the lengthy delay.

A new PERM Form has been pending for some time, but has not yet been approved for use. Meanwhile, we are stuck with the old PERM Form.

For example, there is no place on the Perm Form 9089 to put training if it is offered as part of the alternate requirements in Section H. It's just not there.

And there is no place on the PERM Form to put training, except that an FAQ says to try and squeeze it into Part J.

Remember that computers review PERM forms and then separate and select applications according to unknown criteria for further review by human beings. If the computer does not find the alternate training requirement (and no wonder since there is no place on the form to put it), and if it does not find the alien's training (again, no wonder, since there is no place to put it), the Employer should be looking at a very lengthy processing time involving an audit.

The other thing about PERM that is unbelievably fragile is the processing time for 3rd preference I-140 petitions for most countries, and even the 2nd preference for some countries.

I recently saw a case reach completion that was begun in the labor certification program in 1996. It just dragged on and on, taking 14 years to bring to completion, including adjustment of status, and PERM cases now appear to be returning to those pre-PERM processing delays.

The delays involve multiple government agencies -- DOL, where PERM itself may see lengthy delays, and USCIS where applications may languish for years and years, especially after the famous Adjustment of Status Tsunami of 2007, where 3rd preference opened up to all applicants in July, leading to unusual and unanticipated backlogs. And if the client or derivative beneficiaries expect to be processed by the U.S. Consulate abroad, this is a third, lengthy administrative process.

In today's economy, does it really make sense to apply for PERM if the Employer and alien must wait 5-10 years to obtain residency?

What is the psychological and economic cost of such a lengthy and demanding process?

Perhaps if the country creates an amnesty or legalization process for all the undocumented aliens in the US, the backlogs will disappear, and new immigrants can come in a more orderly and manageable manner.

For now, unless the alien fits into a preferred category, we will have to accept the current reality.

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  1. Yalani's Avatar
    It's the first time I am reading an article which is giving concise details on a situation I have been living since 2000 date I introduced a request for a Labor certificate which was approved after 2 years and still have some predicament in the process. At the same time I sent a waiver for the two-year home residency request to the Department of State in 2002 since my status was J-1. After many letters sent to U.S.A.I.D. Directors, the Under-Secretary of Culture without response, I received a response six (6) years later from the Under Secretary of Management at the Department of State via email from the VISA OFFICE in 2008; stating that I did file my waiver request under a No-Objection and that it should have been under IGA. I was confused by the response time and also by the content as I did file under No-Objection because I had no government agency sponsor but a private company. In the same email, I was instructed to file if I have found a sponsor company under No-Objection. Here is an excerpt of the email:" ....In November 2004 I see that the Waiver Division sent you a letter informing you that you filed for the waiver under "No Objection" but it should have been "IGA/DOS." If DOS is still willing to sponsor you please submit a new DS-3035 along with all IAP66 or DS-2019, fees, and the documents from DOS or another sponsoring agency. If you have found another employer who wants to sponsor you then you can file under "No Objection" and obtain the "No Objection" statement from your country's embassy here in the U.S."
    After sending letters to The Honorable Senator Jim Webb, The Honorable Attorney General, Eric H. Holder, and Mr. Philip McNamara Executive Secretary, DHS as of today, I am still looking to find a resolution to my immigration status.
    How long will it take to complete a case with the new laws?
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