In July, the U.S. Department of Labor (DOL) announced its plans to modernize the labor market test for the Program Electronic Review Management (PERM) program. 

The program requires the Secretary of Labor to certify that the employment of the immigrant worker meets the following criteria: 1) Such employment will not adversely affect the wages and working conditions of U.S. workers in similar roles; and 2) a U.S. worker is not willing and available to assume the position. The latter requires the employer to perform a series of recruitment steps to demonstrate it has, in good faith, attempted to hire a U.S. worker for the position.

Last updated in 2004, current labor market test components include newspaper and radio advertisements, forms of media no longer granting wide exposure to the labor market. As such, in the age of predominantly internet-based job searches, modernization is needed to bring the process up to speed. In addition to revising the minimum recruitment requirements, the DOL will also focus on strengthening PERM rules related to layoffs and promoting employer compliance with non-discrimination requirements.

The PERM process, and its subsequent steps, is one of the most common employment-based pathways to permanent residency for a non-U.S. worker. While the DOL announcement states its focus as “better reflect[ing] current labor market dynamics and ensur[ing] employers experiencing true shortages of high-skilled labor” have access to the process, the impact will likely exceed those objectives. To prepare for such changes, Barnes & Thornburg encourages employers to review current practices, especially those pertaining to layoffs, and prepare to modify existing recruitment practices.

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