Labor Immigration Law

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.

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.