Department of Labor Provides Updates on Perm Program

At a recent stakeholders meeting, the Department of Labor (DOL) provided updates on important changes in the preparation and adjudication of Labor Condition Applications (LCA) and PERM labor certification applications including:

 

• A new system for LCA and PERM applications will be rolled out in 2009 with the LCA system being introduced in early 2009 and the new PERM system in the spring of 2009.
• The DOL has stated that all pre-PERM labor certification cases have been completed by the Backlog Reduction Centers (BRC) and the only remaining cases are on appeal at the Board of Alien Labor Certification Appeals (BALCA).
• The DOL is currently processing PERM cases eligible for approval with a filing date of March 2008 and audit cases with a date of July 2007. In other words, for labor certification applications that have been selected for audit it is likely that these applications will remain pending at DOL for more than twelve months.
• Processing times for appeals of cases filed in December 2006 are presently being adjudicated; appeals predicated on government error are being reviewed immediately. If the response to an appeal indicating government error is not responded to within three months, it is not being treated as a “government error” case.
• The DOL has indicated that it will continue to closely review applications for employees in sectors where the company and/or the industry are experiencing lay-offs. Also, where an employee is considered to be “roving” and the labor certification is filed under the corporate headquarters, the DOL may require supervised recruitment.
• There are about 120 cases filed as PERMs that are currently undergoing the DOL’s supervised recruitment.

 

Given DOL’s pronouncement that it intends to scrutinize labor certification applications in various industries and for particular jobs, company management and human resources need to be prepared to explain, in detail, their reasons for rejecting candidates and to justify the company’s recruitment efforts. DOL clearly signaled its intent to thoroughly examine many cases that were processed without question only months before.

 

In addition to the heightened scrutiny of labor certification applications, the DOL’s development of a new form is a perplexing use of limited resources. At the time the PERM system was contemplated, designed and implemented, it was heralded by some in the immigration community for creating a more standardized and objective process. Unfortunately, the most recent activity in the audit arena and the DOL’s new approach to manual review of an inordinate amount of applications has taken the system back to the inefficient and untimely system it replaced while simply making use of technology and shifting resources to one processing center from various Regional Offices throughout the country.

 

It can only be hoped that a new version of the LCA and PERM application forms will make the process more dynamic and user-friendly, particularly in light of the on- going technology complications and audit delays being experienced with the currently available forms and processes.

 

As the new forms become available, we will provide more guidance and insight on the significance of the changes.