“Non-Professional” Workers and PERM

By Attorneys Robert L. Reeves and Brian Spalter

On December 27, 2004, the Department of Labor (DOL) published regulations to implement its new streamlined labor certification system, entitled “Program Electronic Review Management” or “PERM.” PERM represents a major change to the labor certification process and will likely have a great impact on immigrant workers seeking a “green card” through their employers.

Because PERM has yet to be fully implemented (PERM will officially become effective on March 28, 2005), a great number of foreign workers are currently wondering how the government will treat their kind of case under the new system. The purpose of this article, therefore, is to briefly explain two of the more noteworthy advantages that PERM will bring to “non-professional” workers.

Unlike the old labor certification system, PERM makes a distinction between “professional” and “non-professional” jobs. A professional job is defined as a job for which a bachelor’s or higher degree is a usual requirement. A non-professional job, on the other hand, is defined as a job for which a bachelor’s or higher degree is not a usual requirement. Based on this distinction, a great number of occupations are considered non-professional jobs. A list of such occupations is too long to include here; a few examples, however, include: Nanny, Caregiver, Dental Assistant, Housekeeper, Secretary, Bookkeeper, Nursing Aide, etc.

Under the old labor certification system, such “non-professional” jobs usually took several years (often four or more) to process. This was a significant obstacle for foreign workers and their employers because situations can, and often do, change when a case is pending for so long. Often times, for example, an employer would loose interest in the case simply out of frustration with the length of time that the government was taking in processing the application.

One of the reasons that cases took so long under the old system was that a labor certification application was initially processed by a state government agency (the “State Workforce Agency” or “SWA”) for a first round of processing before being forwarded to the federal U.S. Department of Labor (“DOL”) for a second round of processing. A great advantage of PERM is that it largely eliminates the first round of processing by the state and, instead, has all cases sent directly to the federal DOL for only one round of processing.

Under the PERM system, therefore, cases should be processed significantly faster. In fact, the DOL is projecting that non-audited applications could be certified in only 45-60 days. Such a change has the potential to enormously benefit both professional and non-professional labor certification applicants.

A second advantage of PERM that only benefits non-professional applicants is the reduction in the amount of advertising and recruitment required for non-professional jobs. Under PERM, non-professional occupations only require a job order with the local SWA and two advertisements placed in the Sunday edition of an appropriate newspaper. This reduced level of advertisement is advantageous in several ways. For instance, this change will significantly reduce recruiting expenses for employers. In this regard, the PERM requirements for non-professional jobs more closely reflect the “real world” hiring practice of employers. It is unlikely that an employer seeking a Housekeeper, for example, would spend several hundred dollars conducting newspaper, Internet and/or other kinds of advertising for the position. Thus, although still not cheap, this reduced level of recruitment is certainly a step in the right direction.

In conclusion, the new PERM system has the potential to benefit non-professional applicants by making the process faster and less expensive for all those involved. That being said, it remains to be seen how the government will actually treat such cases when the DOL begins accepting applications for processing on March 28, 2005. There is still a significant amount of uncertainty with regards to how the DOL will interpret and apply several of the provisions in the PERM law. We will discuss the professional worker in future articles.