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.

The “Final Rule” brought about many changes in PERM operations. One important change is that, 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. 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.

Now, the burden for employers looking to sponsor a foreign worker is increased. The relevant legal and advertising fees for the PERM application are nearly $5000. Thus, the PERM process becomes more expensive for employers, especially if they want or need to sponsor multiple foreign workers within a short period of time.

Nevertheless, there are some 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.