Labor Immigration Law

United States Labor Immigration Law News and Analysis

PERM Articles

PERM Statistics from the Department of Labor (FY2014 Q1)

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2014 (October 1, 2013 to December 31, 2013) on their processing of PERM cases and we are happy to share them with our clients and readers.    Please note that this period reflects the period of the partial government shutdown where DOL’s operations were suspended for 16 days.

DOL Processing Statistics (First Quarter, 2014 Fiscal Year)

PERM

According to the report, during the quarter, there were 17,623 cases received (slight 3% increase from the same period in the prior year), 9,076  certified (notable decrease by about 25% from the prior year), 1,039 denied (another notable decrease) and 949 withdrawn (about 50% increase).  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 7,000 cases.  This is also evidenced by the increasing PERM processing times (see the most recent report from February 2014).

Of the pending applications at DOL, 64% are pending analyst review (major increase from a year ago when the percentage was 47), 25% are in audit (decrease from 37%), 9% are on appeal (decrease from 14%) and 1% are in sponsorship verification (at filing).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.    It is also notable that the percentage of cases pending analyst review have increased very substantially, while the audits have decreased somewhat.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 29,612 prevailing wage determination requests filed — of those, 23,585 were for PERM cases (decrease of 3,000 or 8%), 1,404 were for H-1B cases (decrease of 400 or 21%) and 4,625 were for H-2B cases (notable increase of 48%).

In terms of activity, less prevailing wage determinations were issued in Q1 compared to prior quarters – 23,850 (most likely due to the government shutdown).   The number of pending applications has increased compared to a year ago significantly – there are 19,972 prevailing wage cases pending on December 31, 2013 compared to 11,519 on December 31, 2012.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is low compared to other quarters during the year.    But this report was affected by the government shutdown in October 2013.    Even then, there were 67,645 H-1B LCA filings in the first quarter, an increase over the prior year’s period which may be attributed to the rush of LCA filings post-government shutdown.    During the quarter, there were 69,334 LCAs certified for 144,657 positions (one LCA can include more than 1 position).

According to DOL, 79% of the LCAs are processed timely within seven days of receipt (last year’s period metric was 99%).     The rate of LCA denial is very small (1,858 out of 79,304 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The first quarter of the FY2014 was a turbulent time at DOL due to the government shutdown and the reports provided for this period reflect this.      We are hopeful that DOL would work on decreasing its load and processing times, especially for the PERM cases where the processing times have increased significantly.    We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

No comments

Current PERM Processing Times (February 5, 2014)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 5, 2014.

Current PERM Processing Times

Most notable is the significant processing time for PERM applications – while there is no change in the processing time (7-8 months) for regular PERM cases, we easily look back at 2-3 month processing times as recently as a year or so ago.   The processing time of PERM applications in audit remains unchanged (but significantly long) as well compared to last month.   The processing times, as reported by DOL, are as follows:

  • Regular processing: June 2013.  DOL is processing PERM applications with priority dates of June 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (January 14, 2014) report.
  • Audited applications: November 2012.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of November 2012.  This processing time has remained unchanged compared to the January 14, 2014 report.   Accordingly, audited PERM applications are processed approximately 15 -16 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): February 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in February 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The February 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a month ago.   Over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

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.

No comments

OFLC Annual Report Details DOL Employment Visa Processing

The Department of Labor (DOL) has released the most recent annual report for the Office of Foreign Labor Certification (OFLC).    Even though the report was recently released, it is for the 2012 fiscal year (FY2012) which covered the period between October 1, 2011 and September 30, 2012.    While we understand that the relevant period is not very recent, the annual report provides a very detailed picture and analysis of the various visa application processes handled by DOL and also provides very detailed statistics and graphs.

Highlights of the OFLC Report

The report is a 136-page document full of interesting statistics and patterns.  We will not provide a very detailed analysis of most of the areas in the report; however, we would share some interesting points we saw in the report.

  • In FY2012 OFLC processed almost half a million applications for 1.2 million positions.
  • The H-1B and H-2A programs saw increased in the number of applications (16% increase for H-1Bs); while PERM and H-2B decreased (10% decrease in PERM and 4.5% decrease for H-2B).
  • The PERM approval rate was approximately 81%.
  • The most active occupations were, not surprisingly, IT positions (Software Developers, Analysts, Electronics Engineers), followed by Admin Services Managers and Accountants/Auditors.
  • India is the leader in PERM cases (55%), followed by China (6%), Canada (5%), South Korea (5%) and Philippines (3%).
  • California is the state with most PERM cases, followed by New Jersey (decreasing trend), New York (decreasing trend), Texas (stable) and Washington (increasing trend – mainly due to Microsoft).
  • The majority (70%) of the certified PERM applications were for STEM degree holders (of which, about 95% were for IT/Engineering).    The same proportion was noted in the H-1B/LCA filings.

Conclusion

We invite our clients and readers who have an interest in the extensive details provided in the report to review it.   Our summary is simply intended to draw some interesting (to us, at least) highlights.   Although the report reflects a time period ending more than two years ago, especially in certain fast-pace industries, it still provides a valuable description of the process and some interesting trends and patterns among the various DOL immigration processes.

We invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.      Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

No comments

Current PERM Processing Times (January 14, 2014)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of January 14, 2014.

Current PERM Processing Times

Most notable is the significant processing time for PERM applications – while there is no change in the processing time (7-8 months) for regular PERM cases, we easily look back at 2-3 month processing times as recently as a year or so ago.   Also, PERM applications on audit now take a month longer compared to last month.   The processing times, as reported by DOL, are as follows:

  • Regular processing: May 2013.  DOL is processing PERM applications with priority dates of May 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (December 6, 2013) report.
  • Audited applications: October 2012.  DOL is processing PERM audits which have a priority date of October 2012.  This processing time has worsened by a month compared to the December 6, 2013 report.   Accordingly, audited PERM applications are processed approximately 15 -16 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): January  2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in January 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The January 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a month ago with the exception of PERM audit applications where the processing time has increased by a month.   Over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

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.

No comments

Current PERM Processing Times (December 6, 2013)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of December 6, 2013.    We should note that this processing times report is the first to be released after the 16-day government shutdown in October 2013 so the processing times are affected by DOL being closed for close to three weeks during October.

Current PERM Processing Times

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

  • Regular processing: April 2013.  DOL is processing PERM applications with priority dates of April 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (November 6, 2013) report.
  • Audited applications: October 2012.  DOL is processing PERM audits which have a priority date of October 2012.  This processing time has remained constant compared to the November 6, 2013 report.   Accordingly, audited PERM applications are processed approximately 14 -15 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):  December 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in December 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The December 2013 PERM processing times report shows that the PERM processing times remain unchanged compared to our report from a month ago.   However, over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

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.

No comments

Current PERM Processing Times (November 6, 2013)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of November 6, 2013.    We should note that this processing times report is the first to be released after the 16-day government shutdown in October 2013 so the processing times are affected by DOL being closed for close to three weeks.

Current PERM Processing Times

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

  • Regular processing: March 2013.  DOL is processing PERM applications with priority dates of March 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  The additional one- month increase in the processing times (compared to the last September 2013 report) would be disappointing news to many PERM applicants; however, we are hopeful that DOL would be able to catch up and work on decreasing this metric.
  • Audited applications: September 2012.  DOL is processing PERM audits which have a priority date of September 2012.  This processing time has increased by a month or so compared to our last report as of September 5, 2013.    Accordingly, audited PERM applications are processed approximately 14 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):  November 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in November 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The November 2013 PERM processing times report shows slight (1-2 months) increase in the regular PERM processing times and a one-month increase in the PERM audit processing times.    We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months.   We also believe that this month’s report was affected by the government shutdown.

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.

No comments

Current PERM Processing Times (September 5, 2013)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of September 5, 2013.

Current PERM Processing Times

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

  • Regular processing: February 28, 2013.  DOL is processing PERM applications with priority dates of about February 28, 2013.  Accordingly, regular PERM processing times should be around six to seven months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  While there is no additional delay this month (good news), we and many of our readers would be disappointed by the significant PERM processing times right now.
  • Audited applications: August 31, 2012.  DOL is processing PERM audits which have a priority date of August 31, 2012.  This processing time has increased (again) by one month compared to our last report as of August 5, 2013.    Accordingly, audited PERM applications are processed approximately twelve months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):September 3, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed on or about September 3, 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The September 2013 PERM processing times report shows no change in the regular PERM processing times and a one-month increase in the PERM audit processing times.    We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months.  The fact that the regular PERM processing times remain steady is a cautiously hopeful sign, but there is much room for improvement.   Also, we should caution that additional PERM delays are possible due to the (strong, as of the time of this writing) possibility that the U.S. federal government would close on October 1st.   If this happens, an additional delay in the PERM processing times, across the board, is expected.

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.

No comments

Current PERM Processing Times (August 5, 2013)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of August 5, 2013.

Current PERM Processing Times

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

  • Regular processing: February 8, 2013.  DOL is processing PERM applications with priority dates of about February 8, 2013.  Accordingly, regular PERM processing times should be around six months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  Unfortunately, this category has seen additional delays (from five, to five-and-half months and now to six months).
  • Audited applications: August 31, 2012.  DOL is processing PERM audits which have a priority date of August 31, 2012.  This processing time has increased slightly (by one month) compared to our report as of June 4, 2013.    Accordingly, audited PERM applications are processed approximately eleven months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): August 5, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed on or about August 5, 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The August 2013 PERM processing times report shows a slight additional increase in the regular and appealed PERM processing times, and a welcome improvement in the PERM appeal (motion for reconsideration) processing times.   We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two 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.

No comments

DOL Denies PERM Applications Due to Overly Broad Education Requirements

Our office is getting reports from clients, readers and colleagues from other firms that there is an alarming trend in recent PERM Labor Certification application denials due to an overly broad education requirement.    Specifically, DOL denies PERM applications, usually after an audit,  with the stated reason that the “educational requirements are too broad, and thus, the Certifying Officer is unable to determine the employer’s actual minimum requirements for the job opportunity.”   In several reported cases, DOL used this identical language to deny PERM applications where the job requirements included a degree in the fields of “Engineering” or “Business.”

Specifics on the PERM Denial Rationale

In its justification for the denials, DOL argues that a degree in Engineering or Business are simply so broad that an Engineer in a field unrelated to the employer’s needs (for example, for a Computer Systems Analyst position) would not be considered.   We are aware that there are similar denials where the position requires a degree in “Business.”  Specifically, the PERM denial letter reads:

[T]the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of Senior Programmer, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a [Computer Systems Analyst].

For example, U.S. workers who have a degree in an engineering field like “Agricultural Engineering” are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the [Computer Systems Analyst] position. Specifically, the curriculum for a degree in Agricultural Engineering focuses on educating students in the analysis and design of machinery, animal housing, and environmental systems for the production, processing, storage, handling, distribution, and use of food, feed, fiber and other biomaterials, and the management of related natural resources, by integrating basic physical and biological sciences with engineering design principles.

..

Because the employer’s education requirements are so broad, the Certifying Officer is unable to determine if these requirements are normal to the position and/or if they are unduly restrictive. Therefore, the Certifying Officer has concluded that an applicant with any engineering degree (emphasis in original) would not have the skills necessary to perform the duties of the position in an acceptable manner, and as a result, is unable to determine the employer’s actual minimum requirements for the job opportunity.

I think it is fair to say that many other immigration practitioners and employers are troubled by such misinterpretation of an employer’s intent.    Also, in a way, it is a contradiction of DOL’s own PERM policy to discourage employers from narrowly tailoring the job description to fit a specific candidate.     DOL is claiming that because the job requirements are too broad, the position may be unduly restrictive which is a circular argument.

Trend or a Temporary Event?

This kind of denials have started to be issued over the past few weeks so we do not yet have great data to work with and make conclusions as to whether this is a new DOL “guidance by denial” or a situation which would be corrected internally at DOL and so that PERM applications drafted in this way would continue to be approved as they have been in the past.

Unfortunately, there are thousands of PERM applications out there where the requirements may be drafted in a similar way as it is not uncommon for employers to draft job requirements in a way to attract the best possible talent.  Also, unfortunately, the mechanics of the PERM process make it very hard to adjust quickly — it takes often 4-6 months to prepare and file a PERM process due to the prevailing wage and advertising requirements.

We will continue monitoring this PERM denial trend and will report as we hear more on the topic, hopefully directly from DOL.

What To Do with the Denied PERM Cases – Appeal or Refile?

Before evaluating the options for appeal or refiling, it is important to understand that the appeal process is very time-sensitive.   Employers are given 30 days from the date of the PERM denial to file request for review the denial determination.    This, an employer who wishes to preserve its appeal options has a very limited period to file a request for review.    As of right now, it is unclear whether BALCA would ultimately support this kind of a denial reason.  Unfortunately, it would take many months (or few years) to hear from BALCA as to whether this kind of educational requirements are permitted.

In the meantime, we urge employers to review each individual employee’s circumstances in order to evaluate the best options.   Generally, for employees who are on H-1B status and are approaching their 6th year H-1B maximum, an appeal is a very good (if not required) option.      A refiling may make sense for employees who have sufficient H-1B time before reaching the 6th year limit.   Also, the employer should consider the employee’s country of nationality and whether or not an earlier priority date is critical.    For example, an Indian-national employee would certainly benefit from an appeal (which would hopefully be successful) because they would retain the priority date.   On the other hand, an employee who is a “rest of the world” national under EB-2 would perhaps not need to worry about retaining priority date (as EB-2 ROW is current) and would perhaps benefit from a refiling.

These are very case general strategy pointers — we are happy to help evaluate this kind of (or related) PERM denials and provide consultation on the best options.

Conclusion

We are hopeful that this trend of PERM denials would turn out to be a temporary blip and that many of the denied PERM cases would be approved on appeal.      We will continue monitoring this topic over the next few weeks to determine whether there are any long-term trends such as substantive rule guidance as a result of these denials.   Have you received this kind of a PERM denial?   Let us know — we will be also happy to provide an initial consultation to evaluate further options or assist in an appeal or refiling process.     Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

No comments

Current PERM Processing Times (June 4, 2013)

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

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of June 4, 2013.

Current PERM Processing Times

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

  • Regular processing: January 11, 2013.  DOL is processing PERM applications with priority dates of about January 11, 2013.  Accordingly, regular PERM processing times should be around five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: July 31, 2012.  DOL is processing PERM audits which have a priority date of July 31, 2012.  This processing time has increased slightly (by one month) compared to our report as of April 1, 2013.    Accordingly, audited PERM applications are processed approximately nine to ten months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): June 3, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in early  June 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The June 2013 PERM processing times report shows a slight additional increase in the regular and appealed PERM processing times, and a welcome improvement in the PERM appeal (motion for reconsideration) processing times.   On behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times as only a few months ago they were as short as two 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.

1 comment

Next Page »