A Sigh of Relief – the
Final PERM Rule is published
On December 27, 2004,
the Final PERM rule was published in the Federal Register,
indicating an effective date of March 28, 2005. From that day
forward all labor certifications must be filed under the new PERM
regulations. A detailed summary of the voluminous regulations
will be placed on the Flynn & Clark website later this month. In the
meantime, we want to inform you about some of the highlights of the
Final PERM Rule. The good news is that the government accepted many
of the criticisms that had been made to the proposed rule, and thus
the Final Rule is not as onerous in some respects as feared.
Whether it will fulfill its promise of fast and fair adjudication
remains to be seen.
Final PERM Rule
Highlights
Recruitment
Procedures: All cases will require recruitment prior to filing,
with most forms of recruitment occurring in the time window 180-30
days prior to filing. The filing will occur online, with most of the
supporting evidence described (but not submitted) in the online
application. By automating the procedure in this way and eliminating
the manual review of files, the government hopes to be able to
adjudicate these cases in a speedy fashion. Processing time figures
of 45-60 days have been quoted, but veteran attorneys are adopting a
wait and see attitude as to whether such times are in fact
achievable. The original supporting evidence must be retained in
the file for 5 years from the date of filing and produced in the
event of an audit. An audit may occur on a random basis or on the
basis of triggering information in the application. Supervised
recruitment awaits those who fail to respond to the audit in a
timely and satisfactory way. A major change in procedures is that
a labor certification will now be revocable indefinitely.
Eligibility
The Job A/Job B question: The test for using prior experience at
the same employer or parent/subsidiary/affiliate has become more
rigid, but perhaps not as removed from the real world as had been
feared. The FEIN will be used to determine whether the job is with
the same employer or not, presumably permitting experience at
affiliated companies abroad to be relied on. On the other hand,
prior experience at the same employer with the same FEIN can only be
used if 50% or more of the job duties can be shown to be different,
a tougher standard than the previous Delitizer approach.
Forms of
Recruitment – let me count the ways: Every case, other than
competitive academic recruitment or schedule A, will require a 30
day job order with the state and 2 Sunday print ads (with some
exceptions to Sunday ads for rural areas lacking a Sunday paper).
Although it is not considered recruitment, a notice of filing must
also be given in every case. For professional positions, there are
additional recruitment requirements. Three additional different
forms of recruitment will be required out of a list of 10 possible
forms. Only one of these may be within the last 30 days before
filing.
What about pending
labor certifications? There is a procedure for re-filing these
cases and preserving the priority dates in the case of “identical”
job opportunities. We are evaluating whether or not to recommend
this to our clients. If a case has not yet begun recruitment or
does not require Delitizer-type job A / job B standards, it
may be attractive for re-filing under PERM. At the same time,
re-filing implies withdrawal of the pending case. For this reason,
as well as the retrogression in EB3 visa numbers, and the unknowns
surrounding PERM processing time, we want to see more clarity about
the impact of re-filing. The question of the applicability of AC21 7th
year extensions in the event of re-filing is also of serious
concern.
Wages:
Employers will need to pay 100% of the prevailing wage, but will
have a 4-tiered prevailing wage schema to work with, hopefully more
realistic than the current two-tier scheme. It will be implemented
by using a formula where the current level 1 is at the bottom and
the current level 2 is at the top (i.e. new level 4) and two
intermediate levels are established between the bottom and the top
such that there are equal distances between each level. Guidance is
forthcoming on how to apply these levels to the specific SVP/Job
Zone situations. Alternative wage surveys will be accepted; it
remains to be seen whether individual State Workforce Agencies (SWA’s)
can effectively resist the use of alternative surveys.
Stay tuned: We will be posting a more
detailed summary of the Final PERM Rule on our website
www.flynnclark.com later this month.
Watch out - Letters
for pending labor certification cases
Keep your eyes peeled.
In some areas of the country, SWA’s have been sending out letters,
a.k.a. “45-day letters”, indicating that they are unable to verify
the existence of the petitioner and requesting proof of the
petitioner’s existence. Some of these letters have actually gone to
gigantic companies which are household names. Other 45-day letters
deal with a desire for more information about hypothetical
locations for consular processing. In several cases, the letters
have gone, not to the attorney, but directly to the petitioning
company. It is vital to respond to these letters and to respond
appropriately in a timely fashion. Failure to do so risks
denial of the case at worst and delay at best. Do not assume
your attorney has received a copy. If you receive such a letter,
contact your attorney without delay.
Spotlight on
Universities
As we indicated last
month, in this issue, we begin our first feature section on issues
of particular concern to university faculty, students and
researchers. University community members are affected by all the
same immigration laws which affect the business community, plus some
special provisions which have particular meaning in the university
or research context. Among the issues of interest to universities
and researchers are those for permanent residence such as: special
labor certification procedures, standards and timing for faculty as
well as non-labor certification bases for permanent residence.
These may include: outstanding professor/researcher, extraordinary
ability, national interest waiver, and Schedule A Group II,
exceptional ability. We hope to cover at least one topic of
interest to our university readers in every issue.
This month, however,
we would like to particularly draw your attention to the issue of
the new H1B legislation mentioned in our December issue. While it is
true that universities are not subject to the numeric
cap nor to the training fee ($1500/$750) which applies to most other
organizations, they will be subject to payment of the $500
Fraud Prevention fee. This fee will be in effect for cases filed on
or after March 8, 2005.
AR-11 – Change of
Address
Foreign nationals must
always remember to file an AR-11 within 10 days of moving. Failure
to do so is a deportable offense. It is prudent to send in the AR-11
in a way which permits you to prove that you sent it. (Courier or
certified mail with return receipt). Did you forget? Hurry up and
file it now. Don’t forget to tell your attorney about the move. If
you have a case pending with USCIS, the attorney may also
need to give notice of your new address to the office where it is
pending. There is a special version of the AR-11 for persons subject
to special registration.
In Next Month’s
Immigration Update…
Focus on Health care
and biotech. Stay tuned for the February 2005 issue.
Who else should
subscribe?
Are there other persons in your organization
who should receive free copies of the Flynn & Clark Immigration
Update Newsletter? Just let us know at
ddinardo@flynnclark.com and we will send
the person(s) an invitation. In order to be sure that only people
who want to be subscribers are receiving the newsletter, we
distribute it via
Topica, using an invitation and
confirmation approach.
How can I get more
information on the topics in the newsletter?
Contact your Flynn & Clark attorney. We are staying on top of
developments in these areas.
Flynn & Clark wishes
you a Happy and Fulfilling 2005!
Steven A. Clark
Jane P. Devlin
Vincent W. Lau
Lynda J. Hagerty
FLYNN & CLARK, P.C. provides
a full range of inbound as well as outbound immigration legal
services for United States and foreign companies under the
leadership of Steven Clark, Past President of the American
Immigration Lawyers’ Association (AILA)
which has over 8000 members worldwide. The Immigration Update
provides periodic alerts about noteworthy developments in
immigration affecting the business community. It is provided as a
service of the Firm regarding legal developments; it is not a
substitute for legal counseling and may constitute advertising
material in some jurisdictions. If you have questions about the
information contained in the Immigration Update or would like to
know more about our Immigration services and nationwide visa
processing capabilities, please visit our website,
www.flynnclark.com or contact Darlene
Dinardo.
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