Department of Labor Updates on PERM Processing and Labor Condition Applications

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The Department of Labor (DOL) and the American Immigration Lawyers Association (AILA) met on October 27, 2008 to discuss recent issues on foreign worker labor certification among other topics. Below is a summary of the most important issues discussed at the meeting affecting employers who routinely file Labor Condition Applications (LCA) on behalf of employees in H-1B status and Labor Certification Applications (PERM) to sponsor foreign employees for permanent residency.

Economy and Lay Offs

The PERM labor certification process requires employers sponsoring foreign employees for permanent residency to conduct a good faith test of the labor market to determine whether there are any qualified, willing, and available U.S. workers for the job offered by the petitioning employer. Part of the PERM application includes attesting to the DOL that the employer has not had lay offs in the job occupation or a related occupation for which the PERM application has been filed in the six months preceding filing.

DOL announced that in light of the downturn in the economy and increased lay offs across industries, it will begin scrutinizing PERM applications filed by companies within the industries hardest hit by the economy. More specifically, the DOL indicated that it will review internal DOL reports, trade notices, the media, and other sources to monitor lay off patterns. The DOL confirmed that it will question the credibility of PERM applications and review any PERM applications filed by companies that have laid off employees or downsized with extra scrutiny and may require those companies to go through the supervised recruitment program in which the DOL closely monitors all aspects of the employer’s recruitment efforts conducted in support of the PERM application.

Jacobson & Han LLP will continue to remain in close contact with corporate clients regarding possible lay offs in occupations for which the company is filing a PERM labor certification application. Companies are encouraged to immediately speak to their Jacobson & Han LLP attorney if the company is planning lay offs that may negatively impact the filing of PERM applications.

Audits

Unlike U.S. Citizenship and Immigration Services (USCIS), the DOL has not historically released processing times for cases pending at the agency. In its meeting with AILA, however, the DOL indicated that it will begin issuing periodic processing reports on its website. This will allow employees to see the DOL’s processing reports to get a better idea of when they should expect a decision on their cases.

As of October 2008, the DOL stated that approximately 32% of pending cases are in the audit review stage and that this percentage is lower than June 2008, when Jacobson & Han LLP estimates that as many as 50% of cases may have been in the audit stage. The agency also confirmed that it is processing cases that received an audit with priority dates of July 2007 and earlier. Staffing increases at the Atlanta processing center are expected to help alleviate the backlog in pending cases that are awaiting audit review.

The DOL also stated that as of this week, employers will begin to receive courtesy copies of audit letters sent to the attorney of record on any PERM case that receives an audit.

Employer Registration Problems

The DOL acknowledged recent problems with companies attempting to register on the DOL’s PERM website, but companies are not receiving their usernames and passwords from the DOL by email. The agency reported that most problems that companies are experiencing are best avoided by adjusting the spam filters on their email accounts so that any emails from the DOL’s servers are not caught in the filter. The DOL also advised companies that if they do not receive an email with their registration username, password, or PIN to contact the DOL to correct the problem rather than attempting to register a second time. Similarly, when a PERM case is filed, the DOL sends an automatic email with a brief questionnaire that the employer must fill out before the case can begin processing. The DOL stated that many companies are also seeing these critical verification emails go into employers’ spam folders and should adjust their email accounts accordingly to avoid this problem.

New PERM Application Form and Application Portal Website

The DOL intends to make public a new online portal for filing PERM applications and LCAs filed in connection with H-1B petitions by the end of the year. The agency announced that it will hold public meetings in several locations across the country to educate new users on the new portal system.

More importantly, the DOL will also soon be using a new LCA form and PERM application form. Both will be accessible through the new online portal. The new LCA is expected to be launched in January 2009. By way of background, employers who wish to sponsor an employee for an H-1B visa must certify an LCA through the DOL before submitting the certified application to USCIS along with the H-1B petition. Currently, the LCA can be certified on the DOL’s website almost instantaneously. Due to recent discoveries of fraud and abuse of the LCA system, the DOL decided to implement a system in which a DOL employee personally reviews the LCA application before certifying it. The agency has estimated that an LCA certification can take up to seven days and possibly more if any questionable data is found to be included in the application. The application form itself is also set to change and will request more details concerning the H-1B job offered and the salary paid to the H-1B employee. The DOL also confirmed that it will beta test the new form for about one month to vet out any unforeseen problems.

The new PERM labor certification form for permanent residency cases is expected to launch in Spring 2009. Like the LCA, the DOL has made numerous changes to the form including more detailed information about the duties and requirements of the job into which the employer wishes to place the foreign employee.

Hiring Surge

Finally, the DOL confirmed that the agency has entered into a contract to provide additional support to its Chicago and Atlanta processing centers. In the short-term, applicants are unlikely to see an immediate change in processing times. Jacobson & Han LLP is hopeful however that in the long-term, the hiring surge will lead to faster processing times and fewer government error-related PERM denials.