August 28, 2008 - Many of our clients are already aware that the Department of Labor (DOL) has been increasing enforcement measures in recent months leading to a significant increase in the amount of audits and extended processing times for PERM labor certification applications. By way of background, for many employers who seek to sponsor a foreign employee for permanent residency, the PERM labor certification application is the first required step. This application requires the employer to conduct a good faith test of the labor market to determine if there are any qualified, willing, and available U.S. workers for the job offered by the petitioning employer. The DOL has become increasingly concerned with ensuring that petitioning employers are following the PERM regulations when recruiting for the job position and reviewing resumes of potentially qualified U.S. workers.

At a recent American Immigration Lawyers Association (AILA) conference, BAL received further information concerning processing times for PERM certifications and quality control measures put into place by the DOL in light of the increased measures used by DOL for ensuring that all employers are complying in full with the PERM regulations.

Processing Times

The DOL has increased the amount of audits issued on pending PERM labor certifications creating a backlog in the number of pending cases and increasing the amount of time required for PERM certification. The DOL is currently processing all PERM applications in four separate queues: 1. Cases approved without audit (processing time is about 120 days); 2. Audited cases (processing cases that were filed March 2007 and earlier); 3. Cases denied for clear government error and appeal pending (processing time is almost one year); and 4. Cases denied for non-government error and appeal pending (processing cases filed June 2006 and earlier).

Employers should also be aware that the DOL is increasing the number of audits issued on cases which can significantly slow the processing time for a case. Processing times for cases for which no audit is expected will most likely slow as well as more DOL staff will be assigned to review audit responses and review appeals filed on denied cases. BAL expects the processing times at DOL to worsen and urges clients to start the permanent residency process for its employees as soon as possible. Further, employers and employees should assume that a case will be audited and set their expectations accordingly.

Quality Control

In addition to issuing random audits and audits for other issues like exceeding what the DOL considers to be the normal requirements for a job position, the DOL has put into place a fraud unit with the intention of rooting out inconsistencies in job requirements for the same job position. Although the DOL was not present at the conference to provide further clarification, the department has apparently put into place data mining software that is able to compare the job requirements for all job positions for which a company files a PERM labor certification application. The DOL is specifically looking for inconsistencies between job requirements for the same position and is expected to audit employers who do not consistently recruit with the same requirements for the same job position. For example, the DOL will be interested to find out why an employer has filed two PERM applications for the same Software Engineer position, but one position requires a Master’s degree while the other only requires a Bachelor’s degree.

Employers should note that when the requirements for the same job position differ, the employer needs to be prepared to explain the difference between the job positions and distinguish one from another. For example, one Software Engineer position may be at a higher level than the other job with the same title, or the department and projects in which the employee works may be more difficult and require a higher level of education.

With the number of audits rising and increased measures being taken by the DOL, employers should expect increased processing times and increased audits. Employers are also encouraged to work closely with their BAL attorney to ensure that the company is recruiting for the true minimum requirements of the job position and that all information provided to the DOL on the PERM application is accurate. BAL will continue to monitor the progress of the PERM backlog at the DOL and report to clients any new developments that may affect the processing of their cases.