We write to inform you how the new PERM labor certification process may affect your pending reduction in recruitment (RIR) labor certification application. As you may know, all pending RIRs are being sent to federal Department of Labor (DOL) Backlog Reduction Centers (BRCs) in Philadelphia and Dallas. These centers are processing past-filed backlogs of unadjudicated labor certification applications. Some cases may be sent to satellite federal DOL offices in New York City and Boston.  

Each BRC is sending employers and the representing law firm a letter asking whether to continue processing of the pending RIR case. The employer must respond to this letter in 45 days.  If the employer fails to timely reply, BRC will deem the RIR application withdrawn or abandoned. If your employer receives or has received such a letter, please alert us immediately.  

The BRCs will decide the oldest cases first. Thus, for example, RIR cases filed in 2002 and 2003 from NY, CA, CT, and NJ should be worked on first.  DOL has refused to specify when these cases will be adjudicated. We hope that the longest pending cases will be decided sometime this year.  

Under the new PERM system, you now have the option of filing a new labor certification application instead of waiting for your pending RIR case to be decided. The DOL states that it hopes to decide new PERM applications in 45-60 days. However, no PERM cases have yet been successfully processed as DOL is experiencing many “glitches” with its new system.  Even after PERM is functional, the 45 – 60 day processing time is not guaranteed.  Some more complex cases could require a DOL "audit," delaying processing significantly.  Other important considerations for you in deciding whether to file again under PERM are summarized here.  

  To file a new case under PERM:  

-       Your pending RIR application may be deemed withdrawn by filing a new identical PERM application;

-       If you are currently beyond your fifth year in H status, filing a new PERM application may jeopardize your prior RIR filing date and thus adversely affect your ability to extend your H-1B status;  

-       A current prevailing wage must be obtained, and can only come from the state labor department under the new stricter system for prevailing wage;  

-       Your employer must again advertise your position in a Sunday newspaper, a professional journal, and other media sources such as campus job fairs, search firms, web job search sites, etc.; and  

-       New applicants may apply for the job opening. 

If you elect to pursue a new application under PERM, please be advised that we will charge a new legal fee of $5,000.  As part of this new processing we would advise on and assist with new recruitment and candidate replies, place the required DOL "job order," and obtain the required prevailing wage. In some cases, ads placed in the past six months may be used.  

Please let us know if you want us to consider re-filing your labor certification application under PERM, or if you prefer to wait for your RIR to be decided. The new PERM program has many unanswered questions. For that reason, we suggest caution. If you do elect to proceed with a PERM application, we may advise starting the prevailing wage process and advertising, but holding off filing a PERM application until we know more about how the new system works. PERM applications can be filed up to six months after the start of recruitment efforts.  

If you have further questions, please read our newsletter or contact any of us for more details:    

Carolyn Lee: csl@millermayer.com

Rosanne Mayer: rma@millermayer.com

Hilary Fraser: htf@millermayer.com