Labor Immigration Law

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of April 1, 2013.

Current PERM Processing Times

Most notable is the slight delay in the processing time for regular PERM applications — to approximately four months.  The processing times, as reported by DOL, are as follows:

• Regular processing: December 10, 2012.  DOL is processing PERM applications with priority dates of about December 10, 2012.  Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: June 30, 2012.  DOL is processing PERM audits which have a priority date of June 30, 2012.  This processing time has remained steady over the past few months.   Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration to the Certifying Officer):  April 4, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in April 2013.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed within approximately one or two months  after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The April 2013 PERM processing times report shows steady trend in the regular and appealed PERM processing times, and a notable (and welcome) improvement in the PERM appeal (motion for reconsideration) processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the fall and spring.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2013 (October 1, 2012 to December 31, 2012) on their processing of PERM cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (First Quarter, 2013 Fiscal Year)

PERM

According to the report, during the quarter, there were 16,724 cases received (slight decrease from previous quarters), 12,123 certified (notable increase from prior quarters), 1,532 denied (another notable decrease) and 680 withdrawn.  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 2,000-3,000 cases.

As of December 31, 2012, there are 29,344 (increase from prior quarters) PERM cases pending at DOL.   Of these, 48% are pending analyst review (slight decrease), 37% are in audit (no change), 14% are on appeal (substantial increase) and 1% are in sponsorship verification (at filing).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 31,000 prevailing wage determination requests filed — of those, 25,747 were for PERM cases, 1,804 were for H-1B cases (notable decrease) and 3,130 were for H-2B cases (notable increase).

In terms of activity, more prevailing wage determinations were issued in Q1 compared to prior quarters – 33,246.   The number of pending applications has decreased over each of the months in the quarter and is at 11,519 at the end of the quarter.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is low compared to other quarters during the year.    There were 58,812 H-1B LCA filings in the first quarter, a decrease over prior quarters which is, again, mainly attributed to the lack of H-1B cap filings.  During the quarter, there were 56,637 LCAs certified for 175,806 positions (one LCA can include more than 1 position).

According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is very small (1,461, out of 66,303) and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of January 3, 2013.

Current PERM Processing Times

Most notable are the steady processing times for regular and audited PERM applications and the improvement in the initial intake of appeals to the certifying officer.   The processing times, as reported by DOL, are as follows:

• Regular processing: October 2012.  DOL is processing PERM applications with priority dates in October of 2012.   Accordingly, regular PERM processing times should be around three to four months (no change compared to recent reports).   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: May 2012.  DOL is processing PERM audits which have a priority date of late May 2012.  This processing time has remained steady over the past few months.   Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration to the Certifying Officer): January 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of early January 2013.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed in  approximately one month after the appeal was filed.    Please note that unlike the reports for the regular review and audit review (above) which refer to the priority date of the PERM case, this report reflects the date on which the PERM appeal was filed.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Increased Scrutiny and Enforcement May Lead to Increased PERM Processing Times

It should be noted, however, that DOL has indicated that they would continue increasing enforcement of the PERM program — according to recent DOL report, they plan on auditing or performing supervised recruitment for 30% of PERM cases.   This is likely to add to the volume of DOL officers and, perhaps, add to the processing times.   Preparing and filing a strong PERM application becomes very important.  Also, in terms of H-1B extension and green card processing planning, it becomes prudent to plan conservatively on a PERM case remaining under review for 9+ months.

Conclusion

The January 2013 PERM processing times report shows steady trend in the regular and appealed PERM processing times, and a notable (and welcome) improvement in the PERM appeal processing times.   We hope that DOL would be able to continue to improve (or at least keep steady) the PERM processing times over the next weeks and months even as they plan on increasing their PERM program enforcement reviews.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of September 4, 2012.

Current PERM Processing Times

Most notable is the slight delay in the processing time for regular PERM applications — to approximately four months.  The processing times, as reported by DOL, are as follows:

• Regular processing: June 2012.  DOL is processing PERM applications with priority dates in June of 2012.   Accordingly, regular PERM processing times should be around three to four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: January 2012.  DOL is processing PERM audits which have a priority date of January 2012.  This processing time has remained steady over the past few months.   Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration to the Certifying Officer): October 2011\.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of October 2011.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed approximately 12  months after the initial PERM was filed and its priority date established.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

The September 2012 PERM processing times report shows steady trend in the regular and appealed PERM processing times, and a notable (and welcome) improvement in the PERM appeal processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the fall and spring.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

The Department of Labor (DOL) has proposed substantial revisions to Form 9035 (and its instructions), Labor Condition Application, which is used to support a number of employment-based visas, including H-1B, H-1B1 and E-3.    The proposed changes to the form are significant in many respects — the government now requires all LCA beneficiaries (up to 10 per form) to be named on the form, together with information about any PERM filings and immigration status.  The form also starts collecting additional information about each job site, about the employer’s workforce and with respect to a possible H-1B dependent employer status.

Background of Form 9035

Form 9035 is most commonly used in conjunction with the H-1B work visa program, although it applies to H-1B1 and E-3 visas.  Before an H-1B visa petition can be filed with U.S. Citizenship and Immigration Service, the prospective employer has to submit the Form 9035 electronically to the Department of Labor (DOL), to provide certain information about the proposed employment, to attest to the conditions of employment and to request certification by DOL that these terms of employment meet certain requirements (with respect to prevailing wages, etc.).

DOL is tasked with enforcing violations of the H-1B/LCA program and DOL relies on the attestations provided by the employer on the LCA form when conducting audits, investigations for possible violations or penalty proceedings against employers.  As a result,  even though the LCA form is often seen as a procedural “rubberstamp” step in the H-1B application process, it has considerable significance for the overall H-1B program.

What are the Proposed Changes?

The proposed changes on the Form 9035 LCA are significant in many respects.

Up to 10 Workers per LCA; Each Worker Must be Named.  First, DOL now limits the number of workers who may be using the same LCA to 10.   In addition, DOL requires that each worker who would be covered by the LCA to be identified by name, date of birth, country of birth, visa status, PERM case number (if applicable), and a new “H” number which is presumably going to be assigned by DOL to each H-1B worker and which number must be reused during subsequent LCA filings.

More Information about the Employer.   The employer now must provide additional information during each LCA:  year business established, number of employees, gross and net annual incomes, country of headquarters.

Specifics about the Job Site.   Previously, the LCA requested information about the address of the job site.  The revised version of the LCA form seeks more detail to establish whether the job site is the employer’s office, the employee’s home office (for telecommuting), or a third-party client site.   For third-party client worksites, the LCA asks for the end client’s business name.

Prevailing Wage.   The proposed LCA form asks for more information about the prevailing wage determination — to distinguish whether the prevailing wage was obtained via the National Prevailing Wage Center or via the OES database.

Dependent H-1B Employer.   The proposed LCA also asks more questions about the sponsoring employer’s H-1B reliance and whether the employer is “dependent employer” or willful violator.    Additional questions are added to determine whether a dependent or willful violator employer is exempt from the additional requirements.

Attestations.   The proposed LCA also makes certain attestations more prominent by making the employer specifically attest to certain requirements as part of the form.  Previously, these requirements were included in the Form 9035 instructions, but they were rarely paid considered given the lengthy instructions.   Now these attestations are made as part of the actual form.

Why is DOL Revising the LCA Form?

According to DOL, the changes are required in order for DOL to be able to provide better compliance and integrity review of the H-1B/LCA program.   In the past, there were some reports which identified poor ability of DOL to monitor compliance and now DOL seeks to revise the form to have more data which would (presumably) allow it to assure better compliance with the program and prevent abuse.   DOL’s rationale for the revisions (from DOL’s Supporting Statement):

As a result of recommendations from both the Government Accountability Office (GAO) and the Department’s Office of the Inspector General (OIG), the Department seeks to revise the scope of information collected in the context of H-1B, H-1B1 and E-3 applications in order to enhance its integrity review for obvious errors, omissions and inaccuracies under 20 CFR 655.730(b). The revised collection will allow the Department to improve its integrity review and ensure the accuracy and completeness of the information.

..

DOL has amended the form to include more specific information about the workers that will be employed pursuant to a particular LCA. Linking a particular LCA to a set of foreign workers may create more burden hours; however, the collection of this information appears to be necessary to prevent the abuse of that LCA.

We expect that DOL would start using the information which employers will have to start providing to identify and target certain cases (employers) where there is fraud or abuse.   For example, by asking for the names of LCA beneficiaries, DOL seeks the ability, in case of violation with respect to one worker, to identify and investigate other similarly-located workers who may be part of the same LCA.

When Would the Changes Become Effective?

It is important to note that these changes to Form 9035 as of today are only a proposal.   The proposed revisions to Form 9035 are under review process.   The Federal Register notice was published on July 9, 2012 and there is a comment period until September 7, 2012.    Our office will participate in this comment period and we urge all affected parties to submit comments, as described in the Federal Register notice.    We will certainly provide news and updates on this topic as soon as the public comment period closes and DOL provides further guidance on the revisions of Form 9035.

Conclusion

The proposed revisions for Form 9035 are likely to impact all H-1B employers, although in different ways.   At the very least, employers will need to provide additional (and sometimes, sensitive) information on the Form 9035.    For example, some employers do not wish to provide gross or net income figures and while USCIS asks for this field on Form I-129 filings, USCIS often allows employers to omit or justify omitting this information.    We do not know what would be DOL’s approach to LCA filings omitting the employer’s gross and/or net income figures.

On the other hand, higher volume employers or employers who routinely place H-1B workers at third-party client sites will face greater burdens in gathering and providing the newly requested information for each of its employees.   The requirement to name all LCA beneficiaries will also create a disadvantage (a delay of 7+ days) to H-1B employers who seek to hire and place employees on a quick basis.

Our office will continue to monitor developments surrounding the Form 9035 LCA revisions and provide updates to our clients and readers.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

The Department of Labor has provided some updates (as of July 2012) on their processing of employment-based cases and we are happy to share them with our clients and readers.   This kind of information is generally available, but is rarely combined in one place while it is still fairly recent information.

DOL Processing Statistics (Third Quarter, 2012 Fiscal Year)

PERM

According to the report, during the quarter, there were 19,300 cases received (increase from 17,100 in Q2), 7,400 certified (decrease from 9,500 in Q2), 2,600 denied (decrease from 2,900 in Q2) and 800 withdrawn.  As of July 8, 2012, there are 28,400 (increase from 21,000 in Q2) PERM cases pending at DOL.   Of these, 52% are pending analyst review, 37% are in audit, 4% are on appeal, 5% are in supervised recruitment and 2% are in sponsorship verification (at filing).

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the third quarter, there were approximately 34,000 prevailing wage determination requests filed — of those, 29,412 were for PERM cases (increase of 1% over the Q2), 3,142 were for H-1B cases (decrease of 10%) and 1,045 were for H-2B cases (decrease of 20%).

In terms of activity, less prevailing wage determinations were issued in Q3 – 31,088, a decrease of 14% compared to Q2.   The number of pending applications, however, remains steady, at 14,564, which seems to indicate that we have reached a steady balance in the processing times of prevailing wage determinations — 6-8 weeks.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    There were 134,839 H-1B LCA filings in the third quarter, an increase over the past quarters which is mainly attributed to the H-1B cap program which started on April 1st. During the quarter, there were 134,030 LCAs certified for 317,864 positions (one LCA can include more than 1 position).

According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is very small (7,061, out of 144,898) and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Our office closely monitors developments here in Washington, DC on the proposal to lift the per-country limitations on immigrant visas (green cards).    Throughout the past couple of weeks, there have been significant developments on this proposal and we wanted to update our clients and readers.

H.R. 3012 Background

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced in September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

Currently, with the per country caps, individuals from countries that produce a lot of high skilled immigrants, like India and China, have to wait much longer than similarly-skilled immigrants from the rest of the world.  There are just more engineers, for example, from India than Iceland.  When fiscal year 2013 begins on October 1, 2012, it is expected that Second Preference employment based immigrants for highly skilled workers with advanced degrees will have green cards available for those from India or China whose employers started the petitioning process 5 years ago (2007), whereas advanced degree workers from the rest of the world will have green card status current and available for cases started in 2012 (meaning that immigrants from some countries are waiting five times as long as other similarly situated workers).

As proposed, by removing the per-country caps, all employment-based green card holders will be selected so that individuals with similar skill sets will wait a similar period of time.    This will result some countries’ (India and China) nationals to wait significantly shorter period of time (1-2 years for EB-2, down from 5-7 years) while some other countries’ nationals (rest of the world) may need to wait longer (1-2 years, up from almost no wait now).

H.R. 3012 Was Blocked in the Senate by Senator Grassley in Late 2011

After H.R. 3012 passed the U.S. House of Representatives, it moved on to the U.S. Senate.   There, in late 2011, Senator Grassley (R-Iowa) placed a hold on the legislation, as passed by the House, citing concerns about misuse of the guest workers program and requiring certain protections for U.S. workers.   Under Senate rules, because of Senator Grassley’s “hold”, the legislative proposal and the momentum behind it stalled.

Senator Grassley Reportedly Close to a Deal — Increased H-1B Program Audits and Enforcement in Exchange of Removing Per-Country Limits

Over the past couple of weeks, it has been widely rumored that Senator Grassley has removed the hold on H.R. 3012.  This is not true.   Instead, Senator Grassley is reportedly close to a deal which would add extra level of audits and enforcement actions as part of the H-1B program in exchange of removing the per-country limits for immigrant visas.   As of right now, there is a draft proposal of Senator Grassley’s added H-1B enforcement requirements, but no action in Congress on them.   We will certainly provide updates as soon as they are available.

Senator Grassley’s H-1B Enforcement Amendments

It is worth analyzing what kind of H-1B program protections Senator Grassley seeks in exchange.     The text of the proposed amendment — in a barely-readable legalese — is here.   Simply put, Senator Grassley wants to add the following additional enforcement mechanisms to the H-1B program:

1. LCA Review Expanded. The Grassley amendment adds a review process based on clear indicators of fraud or misrepresentation of a material fact, in addition to the current LCA review process (which focuses on completeness and obvious inaccuracies).  As of right now, it is not clear if the review for “clear indicators” is limited to the attestation elements under the statute (§212(n)(1)(A)-(D), wages, strike, benefits and notice) or what a “clear indicator” of fraud or misrepresentation may be.
2. Investigation Triggers Expanded.   Currently, there are restrictions on when DOL can commence an investigation on an H-1B employer.   These restrictions are proposed to be removed by the Grassley amendment.
3. Time Period for Investigations Expanded.    Investigations that are not complaint-driven through the process for private sector LCA complaints will no longer have to be completed within 60 days under the Grassley amendment. No time period is identified as the outer limit for when the government must complete its investigation.
4. Added Compliance Surveys.   The Grassley amendment adds grant of authority to DOL to conduct a compliance survey of any employer who has hired an H-1B worker.
5. Annual Compliance Audits.   The Grassley amendment also adds grant of authority to DOL to conduct annual audit of any H-1B employer.   Furthermore, such annual audits are mandatory for all H-1B dependent employers.

Conclusion

H.R. 3012 and the proposed changes, if enacted into law, would affect many employment-based immigration beneficiaries.    Not only certain green card processing times would change (decrease for some, increase for others), but also many (or all) H-1B employers would face additional scrutiny as a result of the Grassley amendments.    It is very important to stress that neither H.R. 3012 nor the Grassley amendments are law yet — they are simply a proposal which has to be voted, in identical form, by both the U.S. House of Representatives and the U.S. Senate, before being signed into law by the President.

We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 15, 2012.

PERM Processing Statistics

DOL has provided some useful statistics on the number of PERM cases processed for the FY2012 fiscal year (starting October 1, 2011) until February 15, 2012.   During this period, DOL has received 17,700 cases (in comparison, DOL had received 13,000 PERM applications as of January 6, 2012, suggesting a rate of approximately 800 PERM applications filed every week, at least for the past few weeks).

During this period, the government has also processed 16,555 PERM cases.  This suggests that DOL is more or less keeping up with the rate of filings and further suggesting that there should not be major change in the regular PERM processing times in the short term (see below for the current PERM processing times).   Out of the 16,555 PERM cases processed so far this fiscal year, 12,350 were certified, 3,312 were denied and 893 were withdrawn.    Out of the 24,400 “active” PERM cases as of February 15, 2012, about 60% were at analyst review, 26% were at audit review and 8% were on appeal.

Current PERM Processing Times

Most notable is the slight delay in the processing time for regular PERM applications — to approximately four months.  The processing times, as reported by DOL, are as follows:

• Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is slight delay (of one month) in the processing times, compared to the January 2012 report.  Accordingly, regular PERM processing times should be around three to four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: June 2011.  DOL is processing PERM audits which have a priority date of June 2011.  There is improvement (of one month) in the date for this type, suggesting that PERM audits should take a month less than previously.  Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration): August 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of August 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the January 2012 report, this category has improved the processing time by four months.   Accordingly, PERM requests for reconsideration are processed approximately 16-18 months after the initial PERM was filed and its priority date established.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

The February 2012 PERM processing times report shows a very delay in the regular and appealed PERM processing times, while there is a slight improvement in the audited PERM processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the spring.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

The Department of Labor has provided some updates (as of January 6, 2012) on their processing of employment-based cases and we are happy to share them with our clients and readers.   This kind of information is generally available, but if rarely combined in one place while it is still fairly recent information.

DOL Processing Statistics (First Quarter, 2012 Fiscal Year)

PERM

During the quarter, there were 13,000 cases received, 9,400 certified, 2,400 denied and 600 withdrawn.  As of January 3, 2012, there are 21,000 PERM cases pending at DOL.   Of these, 50% are pending analyst review, 33% are in audit, 10% are on appeal, 3% are in supervised recruitment and 3% are in sponsorship verification (at filing).

From the PERM cases which are being audited, the rate of approval is 44-45%.   There are currently 7,000 cases in audit stage.

Prevailing Wage Determinations

H-1B prevailing wage determinations are issued within 60 days.   DOL has indicated that their goal by late January is to have PERM prevailing wage determinations should issued within 60 days as well.

H-1B

There were 83,000 H-1B LCA filings in the first quarter (covering 150,000 workers — one LCA can include more than 1 worker).   According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is 7% and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issued.

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of January 4, 2012.  Most notable is the slight decrease (or improvement) in the processing time for regular PERM applications — to approximately three months.  The processing times, as reported by DOL, are as follows:

• Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is notable improvement (of one month) in the processing times, compared to the December 6, 2011 report.  Accordingly, regular PERM processing times should be around three months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: April 2011.  DOL is processing PERM audits which have a priority date of April 2011.  There is no change in the date for this type, suggesting that there is a delay of at least one month in comparison to prior months.   Accordingly, audited PERM applications are processed approximately eight to ten months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration): April 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of April 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the December 6, 2011 report, this category has improved the processing time by two months.   Accordingly, PERM requests for reconsideration are processed approximately 18-20 months after the initial PERM was filed and its priority date established.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

The January 2012 PERM processing times report shows a very slight improvement in the regular and appealed PERM processing times, while there is a slight delay in the audited PERM processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter and spring as well.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.