PERM Labor Certification Process and Timing (Part 2 of 2)

In Part 1 of this article, MurthyDotCom readers were provided with a step-by-step explanation of the months-long timeframe required for preparing PERM labor certification (LC) cases prior to filing. This continuation of that article explains the steps the U.S. Department of Labor (DOL) takes and related timeframes for processing PERM LC applications once they are filed.

Processing Time Without Audit

The processing time for PERM LC filings has varied historically. As of this writing, if the PERM filing is not audited by the DOL and is submitted online, the decision (approval or denial) is generally received within five months from filing. Paper PERM filings can take significantly longer. At the time of PERM online filing, the DOL should eMail the employer a sponsorship verification questionnaire. If the employer does not respond to the sponsorship eMail questionnaire within one week of receipt, the DOL will make three attempts to contact the employer by telephone. This phone verification process can significantly delay the processing of the PERM case.

The DOL provides general information regarding the filing dates of the cases that it is currently processing. This is extremely useful for establishing expectations of processing times at any given moment.

Processing Time Including Audit

If the DOL chooses to engage in a review of the PERM case through an audit, the overall processing time will increase, often significantly. Most audits are the result of random selection, and therefore cannot be anticipated or prevented. The selection of a case for audit generally coincides with the timeframes for approval or denial of non-audited cases. So, at the current time, audit requests generally are issued approximately within five months of online filing. It may take up to two weeks to receive the audit letter.

There is a thirty-day deadline allowed for submission of a response to the audit. This deadline is calculated from the date of issuance of the audit. Once the audit response is transmitted to the DOL, the case is reviewed on a first-in/first-out basis according to priority date. At this time, decisions in audited cases are generally issued within six months from the audit date. The processing dates for audited cases are also available on the DOL WebSite.

Processing Time for Supervised Recruitment

Supervised recruitment is a process that allows the DOL to require an employer to engage in additional recruitment efforts, directed and supervised by the DOL. Supervised recruitment is required in a limited number of cases, primarily based upon DOL’s discretion. Once a case has been designated for supervised recruitment, the employer has 30 days to submit a draft advertisement according to instructions provided by the DOL. Once the DOL receives the draft, it may take a few weeks to a few months to approve the content. In some cases, the DOL can ask for additional information about the position before approving the advertisement text. After the advertisement text is approved, the employer is directed to place advertisements within 15 days in different media designated by the DOL. The DOL generally keeps the recruiting period open for at least 60 days from the first day of the earliest advertisement, and forwards any applications to the employer as they arrive.

Once the DOL closes the recruitment period, the employer is asked to submit a complete recruitment report within 30 days (which may be extended for up to an additional 30 days for good cause). Once the employer submits the recruitment report, the DOL takes at least 30 days, and oftentimes longer, to process the case through to decision. Since there is no standard processing date information posted for supervised recruitment, it is important to follow up with the DOL on a regular basis. The multiple steps involved and the lack of processing guidelines by the DOL mean that supervised recruitment generally adds several additional months to the PERM process.

Processing Times After Denial

An appeal to the DOL with the reasons the denial should be reconsidered is initially called a Request for Reconsideration. The DOL's current stated processing times are just three months. Recently, we received a favorable decision in one such case within a few weeks. Historically, however, processing of these requests has taken considerably longer. The processing time can vary based on the DOL's current caseload, as well as whether the denial was due to government error, or if the reviewing analyst asks for additional information before rendering a decision.

If the DOL refuses to reconsider its decision, the request will be converted to a request for review (appeal) to the Board of Alien Labor Certification Appeals (BALCA). The file is then transferred to BALCA, which first issues a Notice of Docketing asking for confirmation that the employer still wishes to proceed with the appeal. There is no standard processing time for BALCA decisions. However, it generally takes more than a year from the notice of docketing to the issuance of a final BALCA decision.

Given the significant waiting time, at the point of a PERM denial, it is important to discuss the various potential strategies and options with a qualified immigration attorney before choosing a course of action. There are numerous, somewhat complex considerations that vary based upon the particulars of the case. The option of starting over must also be considered after a denial, as, in many cases, it may be the most viable option. More information about the options following a PERM denial can be found on MurthyDotCom in our NewsBrief, After Denial of PERM: Reconsideration, Appeal or Refile.

What Can I Do to Speed My Process?

As should be clear, there are many parts of the PERM process that simply and unavoidably require a significant investment of time. The best thing an employer or employee can do to help to avoid delays is to carefully follow any instructions from the immigration attorney. It is important to understand all instructions by asking one's attorney for clarification when necessary. That way, the information provided or action taken will be done properly and promptly. The PERM process is truly a participatory process on the part of the employer. The attorney is actually forbidden by regulations and policy of the DOL to just "handle the case" without appropriate participation from the employer. The employee's participation is also crucial, as it is impossible to move forward if the attorney does not have clear and accurate information, which can be documented, regarding the employee's qualifications and other related factors.

Conclusion

Proper immigration planning requires an understanding of the timetables required for preparation and adjudication of the particular type of case. This two-part article should help MurthyDotCom readers in their understanding of the many time-consuming steps in the PERM LC process. Attorneys at the Murthy Law Firm are available to provide information and guidance, as well as representation, in all aspects of matters related to the PERM LC process.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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