The PERM news remains, for the most part good. The only bad news is that the 60 day delay for prevailing wage determinations appears to be permanent. The really good news is that regular PERM processing has been reduced to an average of six months.

Right now, PERM processing begins with the filing of a prevailing wage finding. This is mandatory and cannot be avoided. The DOL is taking 60 days to come back with prevailing wage determinations. Unfortunately, these PWDs are tending toward the upper end of the OES range. That is, jobs that should be a Level 2 often come back with Level 3 or even Level 4 salary findings. Employers have to be very careful when articulating the job duties in order to keep salary levels where they should be.

The processing time for "regular" PERMs (non-audit) have now dropped down to around six months. We continue to see some PERMs approved that were filed a month or two before or a month or two after most that are being approved on a given date. This appears to be the result of individual officer caseloads, with some officers working faster or slower than others.

We have not seen a corresponding shortening of processing times for audit cases. It does appear, however, that random audit cases are being processed in the "regular" queue while targeted audit cases go into the slower queue.

The DOL appears to be attempting to reduce the processing backlog to less than six months and then keep it below that interval. Whether it will ever return to the two week interval that we saw in 2006 and early 2007 is anyone's guess. Their notice of final rule making gave an estimate of 45 to 75 days and courts have shown increasing willingness to hold them to that in litigation involving unreasonable delays.

Many people have inquired as to whether it is possible for the same employer to file a second PERM in cases where they want to upgrade the employee from EB3 to EB2. This is definitely possible, provided the employer makes a clear distinction between the two jobs. The DOL will not allow the same employer to file a second PERM for the same employee in the same job, unless the first was denied. If the job offer is going to be "upgraded" to qualify for EB2, however, that should be more than sufficient to satisfy the DOL.