PERM Reform Moves Toward Publication: Recruitment and Employer Compliance Changes Expected

LEGAL BULLETIN | BUSINESS IMMIGRATION

The Department of Labor’s proposed overhaul of the PERM labor certification program has reportedly cleared review by the Office of Management and Budget (OMB), moving it closer to publication. Employers should prepare to assess potential changes to recruitment, layoff safeguards, and compliance procedures. Completion of OMB review does not change existing PERM requirements.

Key developments

• DOL’s stated objectives include updating recruitment standards, strengthening protections for U.S. workers affected by layoffs, and enhancing compliance with nondiscrimination and record-retention requirements.
• The proposal’s specific requirements and treatment of cases already underway remain unknown pending release of the regulatory text.
• A public comment period is expected following publication. Although that period could be 30 or 60 days, the published notice will establish the actual deadline.
• Any new requirements would depend on final rulemaking and the applicable effective date.

What DOL is considering

The rulemaking, identified as RIN 1205-AC29, addresses the labor market test employers generally must complete when sponsoring foreign nationals through the PERM process. DOL’s regulatory agenda describes an effort to modernize a framework that has not been comprehensively revised since 2004, particularly in light of changes in technology and recruitment practices. The agenda identifies recruitment standards, layoff protections, nondiscriminatory hiring, and record retention as areas for reform. It does not establish specific new obligations. DOL regulatory agenda.

For employers, the eventual proposal could have implications for how recruitment is conducted and documented, how applicants are evaluated, and how workforce reductions affect sponsorship planning. These are potential operational consequences; the scope of any changes must be assessed against the published text.

Existing compliance obligations remain important

Employers should continue following current requirements while the rulemaking proceeds. Existing regulations require that the sponsored job opportunity be clearly open to U.S. workers, prohibit unlawful discrimination, and require lawful, job-related reasons for rejecting U.S. applicants. Employers must generally retain the PERM application and supporting documentation for five years from filing. 20 C.F.R. § 656.10(c), (f).

Current regulations also impose obligations when an employer has conducted a qualifying layoff within six months before filing. Where the regulatory conditions apply, the employer must document notification and consideration of potentially qualified laid-off U.S. workers. Employers should review these requirements with counsel when planning recruitment or filing after a workforce reduction. 20 C.F.R. § 656.17(k).

Practical steps for employers

Employers should use this period to:

• Review recruitment procedures and documentation of applicant consideration and rejection decisions.
• Coordinate among immigration counsel, recruiting teams, and human resources personnel concerning layoffs and planned PERM filings.
• Identify cases at each stage of preparation so that any proposed transition provisions can be evaluated promptly.
• Prepare concrete examples of implementation costs, recruitment challenges, and necessary transition periods for potential public comments.

Employers should avoid assuming that cases filed before a future effective date will be exempt from new requirements. Any transition or grandfathering provisions will need to be evaluated when regulatory text becomes available.

Next steps

Publication of the proposed rule will provide the first opportunity to evaluate the actual amendments and submit informed comments. DOL would then consider public feedback before issuing any final rule. Publication of a proposal alone would not make the proposed requirements binding.

The immediate priority is continued compliance with existing rules and preparation for a potentially significant change in PERM recruitment and documentation practices.