On May 17, 2007, the U.S. Department of Labor (DOL) instituted the “final rule” which affected the role that employers play in the permanent labor certification (“PERM”) application process. The ‘final rule” was implemented in order to establish clear limitations on the acquisition and use of permanent labor certifications and certification applications and reduce opportunities for fraud and abuse in the permanent labor certification program.

As of July 7, 2007, this rule requires employers to pay on behalf of the foreign worker for all fees and costs associated with the preparation, filing, and acquisition of a PERM application. In addition, the employer is prohibited from accepting payment or reimbursement from the foreign worker.

In the past, employers were not required to pay legal fees and simply had to worry about the procedural steps of applying for a permanent labor certification, such as the pre-filing recruitment steps and the Application for Permanent Employment Certification (ETA Form 9089). These procedural steps posed enough of a burden for the employer due to the strict guidelines for pre-filing and filing that could make or break a case after going through this long and, at times, arduous process. The employer has to conduct a 30-day State Workforce Agency (SWA) Job Order, compose a recruitment report, and do three other mandatory recruitment activities which include internal and external job postings. These tasks do not seem difficult, however, the text and placement requirements for these postings are very particular and can be very time consuming for the employer, as they have to supervise and participate in this entire process.

Now, the burden for employers looking to sponsor a foreign worker is a great deal. Totaling close to $5000, the associated legal fees for the PERM application alone just places a lot more added stress and time on the employer to engage in a process that could go on for over six months and result in a denial of the application, leaving them with less money, time, and without the desired skills of the foreign worker. Not to mention that the employer must also pay the foreign worker a salary that is equivalent to other similarly employed workers, after paying these legal costs. This could significantly raise the employer’s cost for the foreign worker even more, as many of these positions offer high salaries since they require higher education such as a Master’s degree.

In addition, the employer is made unfairly liable for the payment of all fees and problems that are associated with the attorney and the application, such as additional advertising fees or any misconduct of the foreign worker which could result in an employer’s permanent debarment from the PERM program, altogether. Thus, the PERM process becomes somewhat risky and, certainly, very expensive for employers, especially if they want or need to sponsor multiple foreign workers within a short period of time.

Prior to this new rule, the foreign worker often took on, at least, some of the cost burden which was more enticing for the employer for the obvious financial reasons and fairer, considering that the application is poised to benefit both parties. In addition, it gave employers more confidence as to the long term intentions of the foreign worker, since they also had a vested interest in successfully completing the application and filling the position.

Nevertheless, there are many positives for the employer in regards to paying all PERM fees and being the principal client of the attorney handling the case. The employer can make sure that their best interests are always represented in the case and have the ability to confirm directly with the attorney about pre-filing and filing guidelines, thus, improving their chances of getting the PERM application approved. From a business perspective, this new rule will emphasize the employer’s desire to recruit increasingly talented workers from anywhere in the world, which will compel more qualified candidates to seek PERM sponsorship from them. Therefore, these PERM sponsored positions will become more and more competitive and result in the hiring of foreign workers that are nothing but the most highly skilled in their area of expertise. A continuous influx of talent and skill into these positions will only result in greater revenue, methods, and efficiency for employers, which will improve their reputation as well as the volume of important clientele that are willing to collaborate on high profile projects and/or business ventures.