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Joel Stewart on PERM Labor Certification

The PERM Story: A Statute Gone Awry

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As the editor of ILW.COM and others have pointed out, if a PERM case is bogged down, lost in the system, taking an inordinate amount of time to be decided, a mandamus action is possible.

The authors of this point of view urge that the basic PERM process is defective, because the regulations have improperly shifted the burden of production of evidence from DOL to the Employer. They argue that the plain language of the statute requires the Employer to file for an application for labor certification, which must then be approved, unless the DOL can document that there are US workers available.

The burden was shifted first by the regulations, which require the Employer to produce documentation in an individual labor certification application contrary to the statute,and then through administrative decisions imposing a totality of circumstances test for evidence and conclusory language in decisions.

In actual fact, the Certifying Officer has the responsibility to determine whether US workers are able, willing, qualified and available. A denial of certification must be based on such a finding, and the burden to make that finding falls on the shoulders of the Certifying Officer.

Instead, Employers are required (by the regulations) to document that US workers are not able, willing, qualified and/or available, and the Certifying Officer, applying a series of stringent administrative rules, finds in favor or against the Employer's assertions.

Prior to these labor certification regulations, from 1965 through 1980, DOL used labor market information, known as the unemployment rate, in making labor certification. The language of the statute, 212(a)(5)(A) was clearly to produce a statistics-driven system.

The current scheme has now moved labor certification to a computerized processing event, where the fate of an application depends not on the CO's finding that the job position has availability of workers but into an electronic challenge of computer skills based on the employer's ability to understand and operate the processing of PERM cases on form 9089.

BALCA decisions such as "HealthAmerica" dealt with the computer glitches and on-line defects with inconclusive results. Employers must now comply with zero-tolerance review of form 9089 according to the regulations and operating instructions. No mistakes of any kind are permitted, as the concept of "harmless error" was removed from the regulations during the transition from pre-PERM to PERM.

The OMB certification on the PERM form states that only 1 1/4 hours are necessary to process a PERM form, although an employer must be conversant with the preamble to the PERM regulation, the PERM regulation itself, and myriad instructions, memoranda, stakeholder minutes and FAQ's to gain even minimal skills required to prepare and process a PERM application.

In this regard, the DOL has shifted not only the burden of proof to the Employer but also the manpower required to make a decision on availability of U.S. workers.

The opinion of some litigators is that the DOL is perfectly aware of these inconsistencies and will approve a mandamus action rather than argue the issues on the merits.

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