AILA DC Conference: Session with the U.S. Department of Labor

In mid-November 2013, attorneys from the Murthy Law Firm participated in the American Immigration Lawyers Association (AILA) DC Chapter Fall Conference as speakers and moderators for many of the informative panels. One particularly thought-provoking session, moderated by Sheela Murthy, was a U.S. Department of Labor (DOL) session with Dr. William Carlson, who is the Administrator of the Office of Foreign Labor Certification. This session provided some good insight into various key matters related to the PERM process.

Processing Times for PERM Cases

During the AILA session, Dr. Carlson stated that the current average processing time for PERM applications, not including cases that are audited, is slightly more than 100 days. He acknowledged that this processing time is beyond the timeframe of 45 to 60 days provided in the preamble to the PERM regulations. But, it should be noted that even this alleged 100-day processing average appears to be quite optimistic. According to the DOL’s own iCert information, as of late November 2013, the cases being adjudicated were filed in March 2013. This eight-month processing timeframe is obviously substantially longer than the 100-day average asserted during the AILA discussion.

The DOL continues to audit approximately 30 to 40 percent of all PERM cases that are filed. According to the iCert site, as of late November 2013, the DOL is adjudicating audited cases that were filed in September 2012. This translates to a processing time average of approximately 14-months for audited cases.

DOL Goals: Sustainable Denials

According to Dr. Carlson, one of the DOL’s goals is to only issue “sustainable denials” when denying PERM cases. In other words, the DOL wants to make certain that PERM labor certification denials will withstand any subsequent legal challenges, including appeals to the Board of Alien Labor Certification Appeals (BALCA). While this may sound a bit ominous, it actually is an entirely proper goal for the DOL to have, in that a denial will typically only withstand legal challenges if the reason for the denial was legally and factually proper.

Supervised Recruitment

The DOL is increasing its use of the option to require supervised recruitment in PERM cases. The supervised recruitment process is one in which the employer, after filing the PERM application, must engage in DOL-specified efforts to recruit U.S. workers. These supervised recruitment directives are in addition to the standard recruitment efforts that must be completed prior to the filing of the PERM case. According to DOL, the withdrawal and denial rate for supervised recruitment cases has increased by 17 percent to the current rate of 70 percent.

Decrease in PERM Filings Post-Shutdown Raises Concerns

After the government shutdown in October, the DOL noted a marked decrease of 30 percent in the volume of PERM cases filed. The DOL cannot fully account for this decrease, and has concerns that it may be tied to technological problems. Dr. Carlson recommended to employers who have recently filed PERM cases that they verify that the DOL has registered these cases as properly submitted. The simplest way to accomplish this is by ensuring that those cases have been properly receipted.

Conclusion

It is clear from Dr. Carlson’s statements that the DOL is carefully reviewing a large percentage of PERM filings, and utilizing resources to identify cases that may not be appropriate for approval. The issue raised regarding the decrease in filings after the government shutdown is a potential concern, so employers with recent PERM filings should double-check to be sure the DOL actually received their cases. Employers and foreign national workers are welcome to contact a Murthy Law Firm attorney with any questions about the PERM process.

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