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During the quarter, there were 13,000 cases received, 9,400 certified, 2,400 denied and 600 withdrawn.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.

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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of December 6, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

• Regular processing: August 2011.  DOL is processing PERM applications with priority dates in August of 2011.  There is no change, compared to the November 1, 2011 report, suggesting that there is a slight delay in the regular PERM processing times. Accordingly, regular PERM processing times should be between three and four 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.  This is a very small advancement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately seven to nine months after the initial PERM was filed and the priority date established.  We welcome this sign of (slight) improvement in PERM audit processing times.
• Appealed applications: February 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of February 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the November 1, 2011 report, this category has imporived the processing time by five months.   Accordingly, PERM appeals are processed approximately 20-22 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 December 2011 PERM processing times report shows a very slight improvement in the regular and audited PERM processing times while the appealed PERM processing times improve by five months.   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 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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of November 1, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

• Regular processing: August 2011.  DOL is processing PERM applications with priority dates in August of 2011.  This suggests that there is a slight improvement in the regular PERM processing times. Accordingly, regular PERM processing times should be between three and four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: March 2011.  DOL is processing PERM audits which have a priority date of March  2011.  This is still an improvement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately seven to nine months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
• Appealed applications: September 2009.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of September 2009.   There is slight improvement in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 24-26 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 November 2011 PERM processing times report shows a slight improvement in the regular and appealed PERM processing times while the audited PERM processing times remain stable.    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 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.

As of October 5, 2011, DOL has shared some important statistics about their processing of PERM and LCA filings.

PERM Updates

1. Number of filings.   There have been 65,000 PERM applications filed over the year, an increase over the previous similar period.   The number of PERM applications processed during the same period was 73,000, which makes a decrease in the backlog of PERM cases by more than 50%.   More than half (56%) of the pending cases are in analyst review stage, 3-4% are in supervised recruitment, 25% are in audit, 14% on appeal and 2-3% are in sponsorship verification.     DOL has noted that audits and supervised recruitment cases are growing.
2. Processing times.  The current processing times are June 2011 for analyst review, February 2011 for audit, April 2009 for appeals and “current” for government errors.    The desired targets for PERM cases are 90 days for analyst review and 180 days average for all PERM cases.
3. Supervised recruitment.    Audits and supervised recruitment continue to increase.   55% of supervised recruitment cases are ultimately denied (of which 84% are lower-skilled and financial industry cases).   21% are withdrawn and 24% are certified.     Areas of focus for supervised recruitment are lower-skilled positions and positions in the financial sector plus areas where there are demonstrable layoffs of workers.   According to DOL, if an area shows double-digit unemployment, then there is a higher than average PERM audit/supervised recruitment chance (after accounting for the job type, etc.) — essentially, DOL takes into account employment trends across geographic areas and employment fields.

LCA Updates

1. Number of filings.   There were approximately 360,000 LCAs processed this year, of which 100% were processed within the target 7 business day window.   Approximately 8-9% are denied and most of the denials are due to FEIN verification mismatch, wage source, tracking number problems and boxes checked on the LCA.
2. FEIN verifications.   Target of processing is two business days and the DOL Chicago processing office receives approximately 140 requests for verification daily.

Prevailing Wage Determinations

DOL stated that they continue to decrease the backlog of prevailing wage determinations and, as of the end of October 2011, all PERM prevailing wage determinations should be within the “normal” processing timeframe of 60 days.   Please see our recent article on the prevailing wage processing times.

Conclusion

We appreciate that DOL is able to release these numbers on a periodic basis because they allow us to draw some (fairly reliable) predictions on the processing times.    Based on DOL reports and based on our firsthand experience from actual cases, we anticipate that PERM cases would take approximately 3-4 months.   Unfortunately, we anticipate higher PERM audits and PERM supervised recruitment cases, especially in certain areas and certain occupations.    Finally, the prevailing wage processing times are trending down and we hope to see processing times of 30-45 days soon.

Please do not hesitate to contact us if we can be of any assistance or if we can provide case analysis as part of our free initial consultation.

Background on the DOL Prevailing Wage Suspension

As a reminder, in August, DOL announced that they are temporarily suspending the issuance of non-H-2B prevailing wage determinations in an attempt to focus 100% of their resources towards completing the re-issuance of few thousand H-2B prevailing wage determinations under a court order.  Please see our August 2011 article on the prevailing wage suspension for more details.

Current Prevailing Wage Processing Times

As a result of the backlog of prevailing wage determinations, our expectations that prevailing wage determinations would take a significant period of time are confirmed.   Currently, we see prevailing wage determinations issued 10-12 weeks after filing of the request.   This is substantially higher than the 4-5 week average we used to see before DOL was ordered to redo previous H-2B prevailing wage determinations.   Our hope is that prevailing wage determination processing times would continue to go down as DOL is working through the backlog of requests.

Some PERM and H-1B Filings Continue to be Affected

Despite the fact that prevailing wage determinations are being issued, the delays of at least a couple of months for a prevailing wage determination remains a major concern for certain PERM/H-1B applicants who need to file their PERM/H-1B urgently.  Our office (along with many other immigration stakeholders) have voiced our concerns that many foreign workers who must file their PERM and/or H-1B in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons may be negatively affected by the slow processing of prevailing wages.   A proposal to DOL to create a procedure to accommodate expedited processing of prevailing wage requests has been submitted, but without any result (as of the time of this article).

Additionally, as a higher number of prevailing wage determinations are issued over the past and coming weeks, it is likely that a higher number of PERM cases will be filed over the upcoming few months — resulting in an increase in the PERM processing times over the next 6-9 months.

Conclusion

We welcome the fact that DOL has started processing and issuing prevailing wage determinations, and while we remain hopeful that DOL will continue allocating resources to bring prevailing wage processing times down to a month, we remain concerned that a number of foreign workers may lose PERM/H-1B benefits due to these delays.   Please do not hesitate to contact us if we can be of any assistance or if we can provide case analysis as part of our free initial consultation.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of August 22, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

• Regular processing: May 2011.  DOL is processing PERM applications with priority dates in May of 2011.  This suggests that there is a slight increase in the regular PERM processing times. Accordingly, regular PERM processing times should be between four and five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: December 2010.  DOL is processing PERM audits which have a priority date of December 2010.  Although this does not continue  the trend of substantial improvement in the audited PERM processing times we saw in June 2011, it is still an improvement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 9 months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
• Appealed applications: January 2009.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of January 2009.   There is generally no change in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30 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 August 2011 PERM processing times report shows a slight delay in the regular PERM processing times while the remainder of the PERM processing times remain stable.    It may be disappointing to some of our clients and readers to see PERM processing times increase from as little as a couple of weeks earlier this year to four to five months today.    We hope that DOL would be able to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit processing times over the summer would continue in the fall and winter 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.

Background of the Need to Reprocess H-2B Prevailing Wage Determinations

Pursuant to a June 15, 2011 ruling, the U.S. District Court for the Eastern District of Pennsylvania ordered DOL  to reissue approximately 4,000 H-2B prevailing wage determinations in order to accurately reflect the new H-2B wage rates that will apply for H-2B employment beginning on or after September 30, 2011 (the new government fiscal year). The June 15, 2011 court order is related to an August 30, 2010 decision in CATA v. Solis, where the District Court ordered DOL to put in place new H-2B prevailing wage rules.

DOL Effectively Suspends Review of All Regular Prevailing Wage Requests by Shifting All Resources

As of a few days ago, DOL has confirmed that they have shifted all of its relevant Office of Foreign Labor Certification (OFLC) resources towards complying with the June 15 court order.   By making this decision, in effect, DOL has temporarily suspended the processing of all non-court mandated prevailing wage determinations.   While it is possible that DOL would switch some of its resources back to processing regular processing prevailing wage determinations, it is possible that no prevailing wage requests would be processed until DOL clears the H-2B backlog.

A federal rule dated as of August 1, 2011 states that DOL should be able to process all H-2B prevailing wages by October 1, 2011.  DOL has also indicated that they plan on completing all 4,000 H-2B prevailing wages by August 31, 2011.   As a result, we should expect (somewhat) normal processing of prevailing wage determinations to return during the month of September.

PERM and H-1B Filings to be Affected and Possibly Delayed

As a result of the prevailing wage suspension, many PERM and H-1B cases are put on an temporary, but highly undesirable, hold.   Even if DOL returns to normal prevailing wage processing as soon as September 1, there would be a significant backlog of pending regular prevailing wage requests.    Many foreign nationals must file their PERM/H-1B applications in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons.    We hope that DOL would be able to designate and allow some prevailing wages to be processed in order to allow foreign nationals with deadlines to make timely filings.

Additionally, and assuming that DOL returns to normal processing in September, there would be a high number of prevailing wage determinations issued which, in a few weeks or a couple of months, would result in a higher than normal volume of PERM filings.   As a result, we expect that PERM processing times to increase over the next 4-6 months.

We would continue monitoring this situation and provide updates as they become available.   Please feel free to subscribe to our weekly newsletter or contact us if our office can be of any assistance.

Total Applications Received

It is interesting to note that for the relevant period, there were 45,000 PERM applications filed.   According  to DOL, the number of FY2011 filings represents a significant 63% increase over PERM filings compared to FY2010.  The vast majority, 43,179 were filed electronically and 1,905 were mailed-in.

Education Level

DOL provides a breakdown of the education level of active PERM cases.   Since DOL counts only active, under review cases, the baseline number is a total of 22,200 PERM cases.   Out of these active cases, 37% require a bachelor’s degree, 37% require a master’s degree, 4% require a doctorate degree, with the balance distributed among Associate degree, High School, Other or no degree requirement (yes, it is possible to file a PERM for such cases, and they represent 12% of the active PERM cases).

Processing Status

DOL also provides a breakdown of the processing status of active PERM cases.   As of May 31, 2011, these cases were 22,200 and 44% of them were in Analyst Review stage, 29% were in Audit, 24% were in Appeal, and 3% were in Sponsorship/Backlog Elimination stage.

Current PERM Processing Times

The processing times, as reported by DOL as of June 27, 2011, are as follows:

• Regular processing: April 2011.  DOL is processing PERM applications with priority dates of April of 2011.  This suggests that there is a slight delay in the regular PERM processing.   Accordingly, regular PERM processing times should be between three and four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: November 2010.  DOL is processing PERM audits which have a priority date of November 2010.  This is a very notable improvement in this category in comparison to prior months.   In comparison with the April 2011 PERM report, this category’s processing time has advanced (improved) by a net of eleven (11) months from December 2009 to November 2010.   Accordingly, audited PERM applications are processed approximately 7 months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
• Appealed applications: November 2008.  DOL is processing PERM appeals which have a priority date of November 2008.   There is no change in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30 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

We continue to praise DOL as it has done a terrific job in eliminating the PERM backlog to 3-4 months and, more significantly, the audit backlog from 20+ months to 7 months.   We also note that the DOL OFLC statistics report suggests a significant (63%) increase in new PERM filings.   As a result, we expect that regular PERM processing times increase over the coming months.

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 provided an update on the current PERM processing dates as of April 25, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — up to two (2) months.  Also, it is important to note the significant (9 months net) improvement in the PERM audit processing times.  The processing times, as reported by DOL, are as follows:

• Regular processing: March 2011.  DOL is processing PERM applications with priority dates in March of 2011.  This suggests that there is a slight delay in the regular PERM processing (compared to one (1) months in February).   Accordingly, regular PERM processing times should be between one and two months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: December 2009.  DOL is processing PERM audits which have a priority date of December 2009.  This is a notable improvement in this category in comparison to prior months.   In comparison with the February 2011 PERM report, this category’s processing time has advanced (improved) by a net of nine (9) months from January 2009 to December 2009.   Accordingly, audited PERM applications are processed approximately 17 months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
• Appealed applications: September 2008.  DOL is processing PERM appeals which have a priority date of September 2008.   There is some slight improvement in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30 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

We continue to praise DOL as it has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as a few weeks today.   We also welcome the significant improvement in PERM audit processing times.  At the same time, however, it is disappointing to see that the appealed queues move very slowly forward or remain unchanged.  We hope that DOL, after being able to consistently review regular PERM cases on a 2-8 weeks timeline, would turn its attention to appeals and audits and decrease the processing times for those cases 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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of February 2, 2011.  Most notable is the decreased (or improved) processing time for regular PERM applications — down to less than one (1) month now.  The processing times, as reported by DOL, are as follows:

• Regular processing: February 2011.  DOL is processing PERM applications with priority dates in February of 201.1  This suggests that there is substantial notable forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be less than one month .   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  We have had recent PERM applications approved in as little as 4 days.
• Audited applications: January 2009.  DOL is processing PERM audits which have a priority date of January 2009.  There is no notable movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24-26 months after the initial PERM was filed and the priority date established.  This PERM processing queue is moving very slowly and is, unfortunately, not getting any better.
• Appealed applications: June 2008.  DOL is processing PERM appeals which have a priority date of June 2008.   There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30-32 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

DOL has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as a few weeks today.   At the same time, however, it is disappointing to see that the audited and appealed queues move very slowly forward or remain unchanged.  We hope that DOL, after being able to consistently review regular PERM cases on a 2-4 weeks timeline, would turn its attention to appeals and audits and decrease the processing times for those cases 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.

Observations from Our Practice

We take special measures to ensure that each PERM application we file is prepared extremely carefully and that any potential PERM audit or denial “red flags” have been addressed.  These include carefully checking the recruitment periods and deadlines, prevailing wage dates, job duties and requirements, and salary, among others.  The Department of Labor (DOL) has started issuing more denials on clerical mistakes – for example, for omitting (harmlessly) specific text from the required PERM notice of posting or from failing to properly document certain steps of the recruitment.

PERM labor certification applications are very technical in nature and require very close following of the relevant regulations and procedures.  By following these carefully, we have been able to secure great results for our clients and we have not noticed increase in PERM audits or denials based on our direct experience.

DOL Comments – Increase in PERM Denials

Our direct experience of not seeing a notable increase in PERM audits or denials is, on the other hand, contradicted by DOL.  During October 28, 2010 Stakeholders Meeting, DOL has acknowledged that  there are increased denials.   According to the meeting minutes, DOL confirms that there is an increase in the PERM denials:

DOL indicated that the increase in PERM denials is due to a number of factors, including staffing changes and an increase in the number of cases filed. At the end of September 2010, DOL moved from multiple staffing contracts, which covered positions ranging from analysts to network support, to one consolidated, performance-based contract. The new capacity has enhanced processing in a variety of areas, and has resulted in increased production. With the increase in staffing, DOL now has the capacity to deal with issues that it could not deal with previously, and the consolidated contract has resulted in higher standards. In addition, DOL indicated that an increase in the number of PERM filings over the past months has resulted in a greater number of denials.

It is interesting that DOL cites the reason for the increase in PERM denials the more robust staffing and better training to its officers.  Essentially, DOL acknowledges that it would continue paying close attention to more of the PERM requirements, including enforcing the clerical requirements (some of which “harmless”) which have caused some recent denials.

Responding to Audits – Failure May Trigger Debarment

In addition to the rate of denials, DOL has specifically addressed the failure of some employers to respond properly or at all to audit notices.  DOL has confirmed that it has seen increased number of employers fail to respond or fail to adequately respond to a PERM audit notice.

DOL has indicated that with its improved staffing it will start looking at these failures to (adequately) respond to a PERM audit notice and would start to enforce more strictly punishments for such failures.   DOL has specifically warned that as a result of failures to report to audit notices,  the number of revocations (of already approved PERMs) and employer debarment proceedings will increase.

Conclusion

DOL’s recent comments do in fact confirm that the number of PERM denials has increased.  As DOL cites better staffing and higher standards for the reason of the increased denials, it is obvious that the increase in PERM denials is caused mainly by strict enforcement or the current standards.  We should expect to see more PERM denials for clerical and harmless errors and for failure to follow all of the PERM guidelines and regulations.

Also, as a result of DOL’s acknowledgment that it would increase the number of revocation and debarment proceedings against employers for failure to (adequately) respond to audit notices, it becomes critically important for employers who receive audit notices to prepare a good and timely response.

The Board of Alien Labor Certification Appeals (BALCA) is an administrative body which reviews mainly denials of PERM labor certification cases but it also handles a number of Department of Labor review cases.   With respect to PERM denials, BALCA is the appellate body which reviews appeals for PERM denials.

BALCA currently has five administrative judges but there are plans in 2011 to increase the number of administrative law judges who will help handle the increasing volume of PERM denial appeals.

BALCA Caseload and Processing Times

Caseload Statistics

BALCA has provided some useful statistics about their current and historic (over the past few years) caseload.

• During the fiscal year ending September 30, 2008, BALCA had docketed 254 PERM cases with an additional 164 pre-PERM cases.
• During Fiscal Year 2009, BALCA docketed 488 appeals.
• During Fiscal Year 2010, BALCA docketed 1,656 appeals, more than tripling the FY2008 volume.
• As of October 18, 2010, BALCA reports that there are 1,215 PERM appeals pending.

BALCA Procedures

Before posting the BALCA processing times, a brief overview of the procedural history of a PERM appeal is in order.   First, it should be noted that BALCA processing times are separate than the PERM processing times.  Once a PERM is denied by the DOL Certifying Officer, the employer has an opportunity to submit a Motion to Reconsider with the Certifying Officer.   If the employer decides to appeal, a timely Motion to Reconsider must be filed with the DOL Certifying Officer.  The Certifying Officer, then, has an opportunity to review the motion and change his or her mind on the PERM denial.  If the Certifying Officer affirms the PERM denial, the employer is then given an opportunity to submit a BALCA appeal.

Once a case is docketed, BALCA sends a notice to the employer requiring submission of a statement of intent to proceed within 15 days and sets a 45-day deadline to submit appellate brief.

Processing Times

Once a case is submitted and docketed at BALCA, the average processing time until a decision is reached for FY2010 was 120 days.    Factoring the docketing period and including any employer-required documents, such as intent to proceed and appellate brief, BALCA reports processing time of 6 months.  This does not include cases which are grouped and held pending a decision on a related case.

BALCA reports that once cases are accepted, they are generally processed in a general “first-in first-out” order based on the docketing date (and not based on priority date).

BALCA and the Capitol Immigration Law Group

Our office handles a number of requests for reconsideration and BALCA appeals on PERM denials.  PERMs are being denied on a number of reasons, some of which are difficult to appeal.  Also, and unfortunately, a DOL has started denying more PERM cases on the basis of clerical (and “harmless”) omissions.  Our office can help you review your PERM denial and, if necessary, assist in the appeal process.  Please contact us if we can be of any help.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of September 31, 2010.  Most notable is the decreased (or improved) processing time for regular PERM applications — down to 2-4 months now.  The processing times, as reported by DOL, are as follows:

• Regular processing: July 2010.  DOL is processing PERM applications with priority dates in July of 2010.  This suggests that there is substantial notable forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately 2-4 months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  We have had recent PERM applications approved in as little as 6 weeks.
• Audited applications: August 2008.  DOL is processing PERM audits which have a priority date of August 2008.  There is no movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24-26 months after the initial PERM was filed and the priority date established.  This PERM processing queue is moving very slowly and is, unfortunately, not getting any better.
• Appealed applications: March 2008.  DOL is processing PERM appeals which have a priority date of March 2008.   There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30-32 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

DOL has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as 2-4 months today.   At the same time, however, it is disappointing to see that the audited and appealed queues move very slowly forward or remain unchanged.  We hope that DOL, after being able to consistently review regular PERM cases on a 2-4 months timeline, would turn its attention to appeals and audits and decrease the processing times for those cases 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.

• Regular processing: May 2010.  DOL is processing PERM applications with priority dates in May 2010.  This suggests that there is notable forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately 4-5 months.
• Audited applications: August 2008.  DOL is processing PERM audits which have a priority date of August 2008.  This is no movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24 months after the initial PERM was filed and the priority date established.
• Appealed applications: March 2008.  DOL is processing PERM appeals which have a priority date of March 2008.   There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 29-30 months after the initial PERM was filed and its priority date established.

We 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.

• Regular processing: August 2009.  DOL is processing PERM applications with priority dates in August of 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: May 2008.  This is no movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24 months after the initial PERM was filed and the priority date established.
• Appealed applications: December 2007.  There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 29 months after the initial PERM was filed and its priority date established.

We 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 announcement.

• Regular processing: July 2009.  DOL is processing PERM applications with priority dates in July of 2009.  This suggests that there is very slight forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: April 2008.  The processing time has not changed over the past few months.  Accordingly, audited PERM processing times remain at approximately 24 months.
• Appealed applications: November 2007.  There is no movement this month in this category over the past few months.  Accordingly, PERM appeals take approximately 28 months.

We 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 announcement.

PERM Processing.  With respect to PERM processing, DOL has made efforts to decrease its PERM backlogs and try to reduce processing times to 8-9 months.  DOL is temporarily assigning PERM applications to adjudicators in Washington, DC, Chicago and to additional staff in Atlanta.  As a result, significant PERM processing time improvements are expected.  Our office has received recent PERM applications certified 7 months after filing.

PERM Recruiting.  DOL indicated that they do not expect a change in the pre-filing PERM requirement of advertising in a newspaper of general circulation in the area of intended employment.   The concern is that few employees seek employment in newspapers as the Internet has almost entirely replaced newspapers in this regard and also that some geographic areas simply do not have a Sunday newspaper of general circulation.  Despite these concerns, DOL has no plans to eliminate the Sunday recruitment requirement.

iCert Prevailing Wage.  Starting January 1, 2010, the iCert system is the exclusive system for requesting prevailing wage determinations which were previously handled by the State Workforce Agencies.  We have reported previously on the long iCert prevailing wage processing times.  In response to concerns about the long prevailing wage processing times, DOL has reiterated that it has previously warned employers that a 60-day processing window should be expected and planned for.  Although DOL indicated that they will try to add more resources to the prevailing wage review process, they expect that the prevailing wage determinations will take up to 60 days.  Requests pending for more than 60 days should be reported to DOL.

USCIS has refused to expand the temporary policy and as a result, effective March 10, 2010, USCIS will no longer accept H-1B petitions filed without a certified LCA.    All H-1Bs filed on or after March 10, 2010, must be accompanied by a certified LCA or will be rejected.

Because DOL was not ready to accept electronic submissions on January 1, it announced that it would accept paper prevailing wage submissions until the iCert system is modified to accept prevailing wage requests on Form 9141.   As a result, many prevailing wage requests from early this year were submitted via mail.  On or about January 15, 2010, DOL launched the online prevailing wage request form and is now accepting online submissions.

Prevailing Wage Determinations Currently Take Three to Four Weeks

Unfortunately, delays in the processing of the prevailing wage requests are widely reported.  In many instances, paper request forms submitted before January 15th took one or two weeks to be entered into the system and confirmed as submitted.  We are seeing that it currently takes between three and four weeks for DOL to provide prevailing wage determinations.

In communications related to the new system, DOL has indicated that prevailing wage determinations may take up to 60 days.  This is in a sharp contrast to the pre-January 1, 2010 system where state workforce agencies were often able to provide prevailing wage determinations within 1-2 days.

We hope that DOL is experiencing adjustment issues to the new system and once system glitches are ironed out, DOL will staff the prevailing wage determination bureau properly so that determinations can be issued promptly.   To avoid delays in H-1B petitions associated with prevailing wage determinations, our office uses alternative prevailing wage surveys.  However, for PERM labor certification applications, the new prevailing wage determination system adds one to two months of additional PERM preparation time.

Background

Starting in December of 2009, our office has been receiving alerts from current and prospective clients about a number of incidents where holders of valid H-1B stamps were questioned and, in some cases, offered the opportunity to withdraw their request for admission into the U.S. or be subject to expedited removal proceedings;  in many cases, such H-1B holders were not admitted into the U.S. and sent back to their home country and have had their H-1B visas cancelled.

Due to the lack of information from CBP and the seriousness of the situation, a number of misleading and sometimes false rumors have began circulating among communities of H-1B holders on the Internet.    We hope that this alert will provide helpful information and understanding of what happens at Newarj, NJ airport and what can be done about it.

USCIS/ICE Employer Fraud Investigations Cause Scrutiny of H-1B Employees

CBP has confirmed that at least several of these cases involved companies which were under investigation by Immigration and Customs Enforcement (“ICE”) and/or USCIS for ongoing H-1B program fraud.  CBP noted that they use as much advance information as possible to target specific individuals who warrant additional inspection.  CBP also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations.  CBP stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed.  CBP confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

Newark, NJ Airport New Policy to Verify L-1 and H-1B Employees

CBP has also announced that the Newark, New Jersey airport has instituted a new policy which involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

Public Information May be Consulted During or After Inspection

Employers should be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Conclusion: Proper Pre-Travel Preparation is Essential

It should be noted that although the recent news were linked with Newark, New Jersey airport, CBP may expand its policy and enforcement to other airports at any time.  In light of these developments, it becomes increasingly important for holders of H-1B and L-1 visas to prepare well for their return trip into the U.S., regardless of the port of entry they use to enter the U.S.

We advise all of our clients to thoroughly prepare for their trip to the U.S. and their inspection upon application for admission.  H-1B and L-1 visa holders should review all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.  In addition, the H-1B or L-1 employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should ensure that public information, such as websites and/or other materials, may be consulted by CBP agents to determine whether a particular H-1B or L-1 petition is valid.

In November of 2009, USCIS agreed to temporarily (for a period of 120 days) create a policy in line with the USCIS Ombudsman’s recommendations.   In a Memorandum dated as of January 28, 2010, by Alejandro Mayorkas addressed to the USCIS Ombudsman, USCIS announces that it will make permanent policy changes in line with the October 2009 Ombudsman recommendations.

USCIS Will Accept H-1B Petition With Evidence of Initial LCA Filing

H-1B petitions will be accepted with evidence of initial LCA filing if the H-1B has been filed at least 7 calendar days after the LCA was filed with DOL.   The petitioner must include a copy of the LCA submission’s email confirmation as evidence.

Petitioners who seek to use this H-1B filing procedure must wait until they receive an RFE before they can submit the already DOL-certified LCA in support of the H-1B filing.  The certified LCA must be the same LCA which was filed with the original H-1B petition, unless the petitioner provides an LCA which was certified prior to the submission of the H-1B petition.

Late Filings Due to LCA/FEIN Verification Delays Should Be Excused

In addition, USCIS has confirmed that it will continue to excuse late H-1B filings under 8 C.F.R. 214.1(c)(4) or 8 C.F.R. 248.1(b) when the delay in filing of the H-1B petition requesting an extension of H-1B stay or change of status to H-1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to employer’s FEIN verification issues.

• Regular processing: March 2009.  DOL is processing PERM applications with priority dates in March of 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: December 2007.  This is movement forward of two (2) months in comparison to the November 31, 2009 report, resulting a net additional gain of one (1) month for audited PERM applications.  Accordingly, audited PERM processing times should be approximately 24 months.
• Appealed applications: August 2007.  There is no movement this month in this category in comparison to November 31, 2009, resulting a net additional delay of one (1) month for appealed PERM applications.  Accordingly, PERM appeals take approximately 28 months.

We 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 announcement.

• Regular processing: February 2009.  DOL is processing PERM applications with priority dates in February 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: October 2007.  This is movement forward of two (2) months in comparison to the July 31, 2009, resulting a net additional delay of two (2) months for audited PERM applications.
• Appealed applications: August 2007.  This is movement forward of only one (1) month in comparison to July 31, 2009, resulting a net additional delay of three (3) months for audited PERM applications.

Based on these numbers, we can conclude that while the August-November 2009 period brings certain forward movement for regular PERM applications, it still takes approximately 9 to 10 months for a regular PERM case to be certified.  With respect to audited or appealed cases, the processing times indicate additional delay.

As a response, USCIS just announced a temporary change in policy pursuant to which it will temporarily accept H-1B petitions filed without Labor Conditions Applications (LCA) that have been certified by the Department of Labor.  USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010.  However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

This does not mean that H-1Bs will  be approved without certified LCAs.   USCIS will still require certified LCA to accompany the H-1B petition before it can be approved.   As a result, petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.

H-1B Labor Condition Applications (”LCA”).  The target performance rate set by DOL is seven (business) days.  For the second quarter, the performance rate was 99.11% of the goal, meaning that DOL responded to nearly all  LCA applications within the mandatory seven days.  This however, reflects statistics from the old, pre-iCert, system which used to provide instant LCA certification.  Under the new iCert LCA system, the LCAs are reviewed manually and from our experience an LCA takes up to 7 business days to certify.  The iCert system went into effect on June 30, 2009.

PERM Labor Certifications.  The target performance rate is review within six months of filing of PERM.  Unfortunately, the reported rate of PERM certifications which fell within the target of six months is only 17%.  Although this is a slight increase compared to 2009Q1 performance rate of 11%, it is still a very low performance rate and confirms our experience from earlier this year that DOL takes upward of 9 months to certify PERM applications.  DOL’s explanation is that such increased processing time is due to increased integrity checks in light of declining economy and continued PERM filings for positions where there are U.S. workers available (for example, financial services).  DOL plans to institute a new electronic filing system for PERM labor certifications around July 1, 2010.

H-2A and H-2B.  The performance target for H-2A is 15 business days while the performance target for H-2B is 60 days.  The on-target performance was 54% (increase from last quarter’s 38%) for H-2A and 87% (increase from last quarter’s 31%) for H-2B.  An important note is that the H-2B regulations were revised as of January 2009 and the numbers do not reflect properly the new H-2B rules.  It should be also noted that the H-2B program performance incrase is a seasonal occurrence and even taking into consideration this performance improvement, the overall performance is under the annual target.

Conclusion.  There seems to be increased delays overall in some categories.  Most troubling are the significant PERM delays.  We have written previously about the delays in PERM processing (which seem to be improving slightly) but  the PERM performance chart for the past eight quarters suggests that return to 6-month processing PERM is far.  Additionally, LCAs for H-1B applications now take up to seven business days which adds a week of processing to all H-1B applications.  For employers who are not part of the iCert system, there may be an additional 2-5 days iCert employer verification period.   As a result, we urge our clients to factor this processing time when planning business and employment decisions with respect to H-1B workers.

The drive behind this policy review by the USCIS Ombudsman is a number of August and September 2009 complaints by H-1B petitioners where either (1) the LCA was incorrectly denied by the Department of Labor (“DOL”), or (2) the there were significant LCA processing delays and where such incorrect denials or delays caused substantial hardship to the beneficiary employee or the petitioner employer.   In many cases, untimely H-1B filings can lead to problems, including (a) the potential loss of employees’ legal status; (b) business operation disruptions due to the loss of continuity in the employment of key employees; and (c) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status.

The Problem

The main problem with the current LCA/H-1B filing requirements is that an H-1B filing requires that a certified LCA be included in the initial H-1B petition.   8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added].   Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added].

Despite this language, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.   Additionally, in connection with the April 15, 2009, iCERT LCA system transition, DOL has been denying LCAs based on federal employer identification number (“FEIN”) mismatches with the DOL’s own database (which is not necessarily up-to-date).  These FEIN-mismatch denials have been adding at least 10-14 days to the time it takes to certify an LCA and as a result have caused significant hardship to employers and employees who have been under a time constraint to file an H-1B petition.

The USCIS Ombudsman Recommendation

The recommendation put forward by the USCIS Ombudsman is nothing revolutionary.  In fact, it seeks a return to previous guidance by legacy INS.    In 1992, the legacy INS responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA.  This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

The Ombudsman recommends similar two-part solution:

1. Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and
2. Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

An important note is that this is not a policy change.  It is merely a formal recommendation of a policy change by the USCIS Ombudsman.  We hope that this policy will be considered and put into effect by USCIS to eliminate the negative effects the current policy has on employers and employees alike.

Definition of H-1B Dependent Employer

Pursuant to 20 CFR 655.736,  an H-1B dependent employer is one which meets one of the following standards:

1. The employer has 25 or fewer full-time equivalent (“FTE”) employees in the U.S. and employs more than seven (7) H-1B nonimmigrants;
2. The employer has at least 26 but no more than 50 FTE employees and employs more than twelve (12) H-1B nonimmigrants; or
3. The employer has at least 51 FTE employees and employs H-1B nonimmigrants accounting for more than fifteen percent (15%) of the employer’s total FTE employees.

Duties of H-1B Dependent Employers

If an employer is deemed to be H-1B dependent, then an additional set of requirements applies:

1. The employer has to promise that it will not displace a similarly employed U.S. worker within ninety (90) days before or after an H-1B visa petition is filed;
2. The employer will make good faith efforts to recruit U.S. workers; and
3. The employer must make a job offer to an equally or better qualified U.S. applicant.

Exempt Employees

The  H-1B dependent requirements do not apply to “exempt” H-1B candidates.  Exempt H-1B candidates are those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.

Calculations Must Be Made With Each LCA/H-1B Filing

As employers constantly change the composition of their workforce, it becomes important to perform the H-1B dependent employer analysis with each LCA/H-1B filing.  If an employer turns out that it is H-1B dependent and if the H-1B candidate it not exempt (as described above), then the additional set of requirements (described above) must be met before the H-1B petition can be filed.

• Regular processing: November 2008.  Unfortunately, there is no movement in comparison to the April 30, 2009 report which also reported November 2008, resulting a net additional delay of three (3) months for regular PERM applications.
• Audited applications: October 2007.  This is movement forward of only one (1) month in comparison to April 30, 2009, resulting a net additional delay of two (2) months for audited PERM applications.
• Appealed applications: July 2007.  This is movement forward of only one (1) month in comparison to April 30, 2009, resulting a net additional delay of two (2) months for audited PERM applications.

Based on these numbers, we can conclude that unfortunately the May-July 2009 period does not bring any improvement in the PERM processing times.   In fact, based on the July 31, 2009 numbers, regular PERM applications are expected to take approximately 9 months.

FY2009 H-2B Numbers Are Under the Quota

On January 7, 2009,  USCIS announced that it has accepted a sufficient number of H-2B petitions to meet the annual cap of 66,000 H-2B visas.  However, the Department of State has received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

FY2009 Filing Deadline Is Imminent

The normal (non-premium processing) adjudication time frame for H-2B petitions is 60 days. USCIS will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions (Form I-129) for fiscal year 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year 2009 deadline of Sept. 30, 2009, USCIS cannot guarantee approval of any H-2B petition on or before the Sept. 30, 2009 deadline. Employers therefore are encouraged to file as soon as possible and to request premium processing by filing a Form I-907 and
submitting the $1000 premium processing fee, which will allow for expedited adjudication before October 1.

Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will be considered towards the fiscal year 2010 H-2B cap and are subject to all eligibility requirements for fiscal year 2010 H-2B filings, including 8 CFR 214.2(h)(6)(iv)(D), which requires that the start date listed on the petition be the same as the starting date authorized on the temporary labor certification.

Please see a USCIS FAQ regarding this H-2B filing window reopening.

H-1B Labor Condition Applications (“LCA”).  The target performance rate set by DOL is seven (business) days.  For the first quarter, the performance rate was 100% of the goal, meaning that DOL responded to all  LCA applications within seven days.  This however, reflects statistics from the old, pre-iCert, system which used to provide instant LCA certification.  Under the new iCert LCA system, the LCAs are reviewed manually and from our experience an LCA takes up to 7 business days to certify.  The iCert system went into effect on June 30, 2009.

PERM Labor Certifications.  The target performance rate is review within six months of filing of PERM.  Unfortunately, the reported rate of PERM certifications which fell within the target of six months is only 11%.  This is very low performance rate and supports our experience from earlier this year that DOL took upward of 9 months to certify PERM applications.  DOL’s explanation is that such increased processing time is due to increased integrity checks in light of declining economy and continued PERM filings for positions where there are U.S. workers available (for example, financial services).

H-2A and H-2B.  The performance target for H-2A is 15 business days while the performance target for H-2B is 60 days.  The on-target performance was 38% for H-2A and 31% for H-2B.  An important note is that the H-2B regulations were revised as of January 2009 and the numbers do not reflect properly the new H-2B rules.

Conclusion.  There seems to be increased delays overall in all categories.  Most troubling are the significant PERM delays.  We have written previously about the delays in PERM processing (which seem to be improving slightly) but  the PERM performance chart for the past eight quarters suggests that return to 6-month processing PERM is far.  Additionally, LCAs for H-1B applications now take up to seven business days which adds a week of processing to all H-1B applications.  We urge our clients to factor this processing time when planning business and employment decisions with respect to H-1B workers.

There are about 58,000 applications currently pending of which 54% are under final review, 38% are in audits, 6% are on appeal and the remaining 2% are subject to  employment verification checks or othe.

DOL also reported that cases which are under supervised recruitment have a 25% withdrawal rate, 45% denial rate, 11% certification rate and about 20% remain pending.  Unfortunately, DOL did not report the total number of these cases as of the date of their report.

What Do These Numbers Mean?

Although the number of pending PERM cases is higher than the numbers as of December 31, 2008 (which was 53,200), we expect to see processing PERM times descrease slightly over the upcoming months.   We have written about the cause of the PERM processing delays in the past and it seems that although the overall number of pending cases has not decreased substantially, the processing times have gone done slightly.  We expect this trend to continue, although we do not expect major processing time improvements.

With respect to supervised recruitment, the numbers do not look encouraging with a 11% certification rate for each case which has been ordered for supervised recruitment.  This could be due to the fact that many employers decide to withdraw the case and refile (which explains, in part, the high withdrawal rate of supervised recruitment PERM cases of  25%).

We hope that with the introduction of the new iCert PERM portal  later this year and with the economy slowdown, the PERM processing times should improve.

DOL Priorities

DOL is working on (1) increasing the amount of supervised recruitment from the Atlanta National Processing Center by October 1, 2009; (2) centralizing the processing of all prevailing wage determinations; and (3) centralizing all help desk functions in the national Office of Foreign Labor certifications in Washington, DC by January 1, 2010.

PERM under iCERT Portal Delayed

The PERM section of the new iCert portal will take longer to complete than anticipated and will not be deployed until after September 2009.  Exact deployment date could not be provided.

• No audit: November 2008 (a month ago, DOL was processing PERM applications filed in April 2008, this is a significant positive development);
• Audit: September 2007 (no change from a month ago);
• Appeal: June 2007 (no change from a month ago).

We have noticed that PERM system improvements and the emphasis on efficiency at the Atlanta PERM center have improved the PERM processing times from approximately 9 months in March 2009 to around 6-7 months as of end of April 2009.

• No audit: July 2008;
• Audit: September 2007;
• Appeal: June 2007.

Hopefully, the upcoming PERM system improvements and the emphasis on efficiency at the Atlanta PERM center will improve the current 9-month PERM processing time.

Initially, the Department of Labor was scheduled to release new IT systems to handle PERM (part of some employment-based green card application processes) and LCA (part of the H-1B work visa application process) filings with new and enhances systems.  Last Friday, March 20, 2009, DOL announced that the launch of the new PERM filing system will be delayed from July 1, 2009 to September 2009 due to technical issues.

At the same time, DOL has confirmed that the LCA filing system will be launched on April 15, 2009, with concurrent use of the old and new systems between April 15, 2009 and May 15, 2009.  After May 15, 2009, it is anticipated that only the new LCA filing systems will be available for preparing and filing LCAs.

[T]he delay was due to change in contractors and the subsequent period of hiring and training new contractor staff for the Atlanta National Processing Center.

One of the reasons that case processing slowed in the 4th quarter of 2008 was that DOL was hiring and training contractor staff for the Atlanta National Processing Center. The contract was awarded last summer, a losing contractor appealed and won the appeal, then the initial contractor sued. The workers did not come on board until last September 2008. The Atlanta Processing Center has only 40 federal employees and the rest of the staff consists of contractors. With the contractors now in place, the pace of processing has picked up. Only 4,571 PERM applications were completed in October-December 2008 but 3,500 PERM applications were completed in January 2009. However, DOL expects this will level off and processing rates will slow down again because of the limited number of federal employees available to review the contractors’ work.

The January number of 3,500 PERM applications is reassuring.  We will continue monitoring information from DOL regarding PERM processing timelines and provide updates to this important to many of our readers topic.

In a response to a question posed at a February 3, 2009, DOL stakeholder meeting, DOL indicated that:

The rising unemployment rate is also a big concern to DOL. 180,000 jobs were lost in the last month, and 1.2 million jobs were lost in the last five months. Unemployment funding is in trouble in many states. OFLC is trying to integrate labor market information from various sources within DOL. In response to continued layoffs, DOL will increase supervised recruitment.  [...]DOL will carefully analyze actual data regarding layoffs and not react solely based on news reports. However, the clear message is that we should expect more supervised recruitment as layoffs affect new industries.

This message from DOL seems to indicate that an increased scrutiny should be expected in certain PERM filings.  Although it is difficult to predict the kind of cases to which DOL will impose supervised recruitment, it is likely that, for example, financial analyst positions in New York City will be given extra attention.

There are some interesting numbers.  Unfortunately, the news is not good for PERM applicants.  As of December 31, 2008, there were 53,200 active PERM cases pending at DOL.  This is significantly higher than the 40,200 cases which were pending as of September 30, 2008.  This means that for the past three months, the backlog at DOL’s PERM processing centers has increased by 13,000 cases, or by 32%.   For the same period, between October 1 and December 31, 2008, DOL received 20,752 new PERM applications but it completed only 4,571 cases.

These  numbers confirm our observations that PERM applications are backlogging significantly and the processing time is likely to skyrocket over the next 6-12 months.  According to (fairly reliable) information compiled by our friends at trackitt.com, the PERM processing times have been steadily increasing from somewhere around 70 days in late 2007 and early 2008 to 200-200 days in mid 2008.   Based on DOL’s statistics, we expect the PERM processing times to incrase more.

We will continue monitoring the PERM timelines and attempt to draw some conclusions which would help our clients plan their immigration strategy.  Please subscribe to our newsletter to receive regular updates on this topic.

Under the INA’s “no benching” provisions, the employer is obligated to pay the required wage even if the H-1B nonimmigrant is in “nonproductive status” (i.e., not performing work) “due to a decision by the employer (e.g., because of the lack of assigned work)…” 8 U.S.C.A. § 1182(n)(2)(C)(vii)(I); 20 C.F.R. § 655.731(c)(7)(i).

But the employer does not have to continue to pay the H-1B nonimmigrant the required wage “if there has been a bona fide termination of the employment relationship.” 20 C.F.R. § 655.731(c)(7)(ii). The employer must notify the Department of Homeland Security (DHS) that the employment relationship has ended so that the federal government may revoke approval of the Petition for a Nonimmigrant Worker, and must, under certain circumstances, provide the nonimmigrant with payment for transportation home.  Additionally, the employer need not pay wages to an H-1B nonimmigrant who is in nonproductive status due to conditions unrelated to employment that remove the nonimmigrant from his or her duties at his or her “voluntary request and convenience” or render the H-1B non-immigrant unable to work. 20 C.F.R. § 655.731(c)(7)(ii).

The benching rule has been around for some time, but in light of economic slowdown, many H-1B employers may decide to put their employers on non-paid leave and, as a result, violate the benching rule.  It is important to consider an employer’s human resource needs and the employee’s immigrant status in connection with notifying USCIS of termination of employment.  There may be alternatives which are available to employers who are hoping to avoid temporarily paying wages to H-1B holders while expecting better economic times.  We would be happy to consult your company on this matter.