Shaping Smarter Regulations

DOL Should Update and Modernize PERM Regulations

There are a number of aspects of the PERM regulations (Program Electronic Review Management used in the Labor Certification process for permanent residency sponsorship by employers) that continue to require revision, so they are updated and modernized, none of which have been addressed since the 2011 regulatory review process:

 

20 CFR Part 656 currently has no agency timelines for adjudications, audits or appeals. When DOL published the PERM regulations (December 27, 2004), it stated in the preamble that processing times were expected to be less than 60 days and instead processing times are often 12-24 months. Presently, DOL has returned to processing newly filed cases that are not selected for audit within a period of several weeks (but this was the pattern previously). Moreover, cases selected for DOL audit currently take two years (or longer) to be processed. This discrepancy in adjudication timelines is disruptive to employers, and creates uncertainty in using the program, especially given that audits are not based on substantive problems with the underlying case.

 

20 CFR Part 656 generally and 20 CFR 656.20 specifically currently have no recognition of harmless error. DOL should reinstate harmless error, to allow the Certifying Officer to approve Labor Certification cases that may have technical errors, but are substantively compliant with the regulations. Harmless error was available under pre PERM regulations (prior to March 28, 2005), and is important to provide fairness and due process to employers as well as to reduce unnecessary employer costs with regard to employee retention as well as being vital to avoiding out-of-pocket legal and recruitment fees to repeat a Labor Certification due solely to harmless error. With a harmless error regulation in PERM, the workload at the Employment Training Administration, Solicitor of Labor and the Office of Administrative Law Judges would be reduced, as would corresponding processing times and backlogs.

 

20 CFR 656.18(b)(3) currently requires employers to place an advertisement in a national professional journal, but bars the use of electronic publication. The requirement of a hard copy journal ad does not reflect “real world” recruitment for occupations that DOL classifies as special handling, which is now done almost exclusively on an electronic basis.

 

20 CFR 656.17(e)(1)(B)(1) currently requires two print ads on Sundays for professional jobs in the largest newspaper of general circulation closest to the job site, even though such print ads are extremely costly and rarely used by employers in their regular recruitment. This requirement is therefore costly, not effective, and not relevant for advertisement of the sponsored position. If DOL’s goal is broad exposure of the available position, online recruitment would be substantially more effective than two print advertisements. If a print advertisement is still required, reduce the requirement to no more than one print ad.

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Idea No. 61