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 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.

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 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.

One of our major practices is the processing of employment-based permanent residency applications, most of which require an ETA 9089 PERM labor certification.  As a result, we handle a number of PERM labor certifications filings, appeals and other related matters.  Our office has been receiving an increasing number of inquiries about possible increase in PERM denials and/or audits.

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.

What is BALCA?

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.

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 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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of August 31, 2010.  Most notable is the decreased processing time for regular PERM applications — down to 4-5 months now.  The processing times are as follows:

• 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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of May 31, 2010.  They are as follows:

• 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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of April 30, 2010.  They are as follows:

• 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.

On March 25, 2010, the Department of Labor (“DOL”) held a stakeholders telephone conference to discuss DOL operations generally, and address PERM, iCERT prevailing wage and other specific areas.  We are happy to share some interesting pieces of information from DOL.

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.

In November of last year and in February of this year, we wrote about a temporary change USCIS made with respect to H-1B petitions filed without certified Labor Condition Applications (LCAs).   The reason for this temporary change in policy was to accommodate LCAs which have been delayed past the 7-day LCA processing window.   Pursuant to the temporary policy, H-1Bs could be filed with evidence of filed LCA which shows that the LCA has been pending for more than 7 business days.

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.