DOL on How to Avoid a PERM Denial
Posted Apr 29, 2004
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Since the PERM program for filing labor certification cases went into effect on March 28, 2005, there have been numerous problems and unresolved issues. Those not yet familiar with PERM should review our many articles on the topic, all conveniently located in the PERM section of MurthyDotCom. The anecdotal information circulating among immigration attorneys is that all PERM filings to date have been summarily rejected or denied. At The Law Office of Sheela Murthy, P.C., we have not received any reports of PERM case approvals and many firms are waiting to file under PERM because of the problems and uncertainties.
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The U.S. Department of Labor (DOL) addressed the issue of the denial of all electronically filed PERM cases, as well as procedural matters pertaining to PERM, in a recently-released second set of PERM Frequently Asked Questions (FAQs) and response to the American Immigration Lawyers Association's inquiries regarding denials and registration. At The Law Office of Sheela Murthy, we have carefully reviewed this material to provide this update for MurthyDotCom and MurthyBulletin readers.
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Only Employers May Register
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The DOL continues to insist that only employers may register to use the online PERM system. The registration must be submitted by an individual with actual hiring authority for the employer. The employer must also register all attorney sub-accounts under the employer's name. The DOL has suggested that it has the capability to track the source of registrations, and that PERM cases may be denied if they find that employer registration occurred on an attorney or agent computer instead of an employer computer.
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Employer Existence Check
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When an employer registers, the DOL conducts an employer existence check. This may take two weeks or more, and the employer will not be sent the two eMails that provide the personal identification number (PIN) and password until the existence check is complete. Due to the length of time it is taking for these checks, some employers have tried to register multiple times, thinking that there is a problem with the system, but causing more problems. The DOL requests that employers not register more than once simply because the pin and password eMails have not yet arrived. The DOL has also noticed that some eMails are sent into a spam filter box because two eMails are being sent from the DOL at the same time. DOL asks that employers check their spam filter boxes or use an account that does not have spam filtering.
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Employer Should Use Headquarters and Correct Legal Name
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To avoid problems with the existence check, the DOL suggests that the company use its headquarters address as the company address. Further, the DOL has indicated that employers should avoid using "doing business as (DBA)" names wherever possible. They should use the company's legal name, as the dba name may create confusion in the existence check. If a company has several Employer Identification Numbers (EINs), the company should use the EIN that is linked with the company's articles of incorporation.
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Notice of Filing in In-House Media
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The DOL stated that, if the employer normally recruits for similar positions in the employer's organization through in-house media, the employer must publish the notice of filing in the in-house media for 10 consecutive business days or the employer's normal period of recruitment, whichever is longer. This will not count as one of the additional forms of recruitment that is required for professional positions.
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Electronic Journal Not a Viable Alternative
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The DOL rejected the suggestion that an electronic national professional journal could be used in lieu of one Sunday advertisement for positions for professionals with advanced degrees and experience or to meet the college and university teacher recruitment requirements. This recruitment can only be through a print journal.
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Reasons for PERM Denials to Date
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The DOL gave the American Immigration Lawyers Association (AILA) some insight into the reasons it has denied cases to date. The DOL does not permit prevailing wage determinations that were issued prior to March 8, 2005. They have also seen some cases where job orders, particularly those filed in February 2005, were not open with the State Workforce Agencies (SWAs) for 30 days or more. Other cases have been denied because they were filed less than 30 days after the recruitment period ended. Others have indicated that the beneficiaries have not been offered the jobs listed on the labor certifications. As previously indicated, it also appears that some cases have been denied because the attorneys registered those employers on the PERM site.
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As the PERM system is electronic and has denial triggers encoded in the system, it is more important than ever to be accurate with filings. The 30-day period for job orders, followed by the 30-day recruitment period, must each be counted carefully. Notices of filing must also be posted and completed more than 30 days before the case is filed. These dates must be carefully tracked. In addition, it should be indicated on the PERM application that the beneficiary has been offered the job listed on the labor certification.
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Appeals to PERM Denials
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The appeal clock on a denied case begins when the written notice of the denial is actually issued. This means that, even if the denial appears on the system, the appeal clock has not begun. Since the denial is not usually explained in the online system, it is reasonable that the period does not begin until the reason for the denial has been explained in writing.
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Conclusion
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The PERM system so far has not proven to be the panacea to labor certification backlogs that many hoped it would be. It is too soon, however, to give up on PERM entirely. Many new systems have glitches at the beginning, and PERM has not been immune. Most qualified immigration attorneys are proceeding cautiously into the PERM waters and assisting their clients in making prudent choices, considering the possibility of any re-filings under PERM. While the new system appears to be user-friendly and welcoming to employers, employers should beware of the many traps and snares that stand in their path to PERM filings and approvals.