Labor Immigration Law

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.

Effective January 1, 2010, the Department of Labor (DOL) centralized all prevailing wage determinations needed in connection with certain programs – PERM, H-1B, H-2B and E-3.   All prevailing wage requests now must be submitted to DOL for processing and not to the state workforce agencies, as it was done before.

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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of December 31, 2009.  They are as follows:

• 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.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of November 31, 2009.  They are as follows:

• 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.

The Department of Labor (”DOL”) has released a quarterly report covering the second quarter of 2009 (ending on June 31, 2009) which report indicates the performance measurements for four categories of labor certifications performed by DOL:

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 Department of Labor has provided an update on the current PERM processing dates as of July 31, 2009.  They are as follows:

• 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.

The Department of Labor (“DOL”) has released a quarterly report covering the first quarter of 2009 (ending on March 31, 2009) which report indicates the performance measurements for four categories of labor certifications performed by DOL:

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.

The Department of Labor (“DOL”) has released some numbers about their pace of PERM processing.

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.

The Department of Labor (“DOL”) has provided some updates on their operations and processing during the annual AILA conference.

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.

The Department of Labor has provided an update on the current PERM processing dates as of April 30, 2009.  They are as follows:

• 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.