July 2005 DOL Update : PERM and Backlog Processing Centers
Posted Jul 22, 2005
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PERM being a fairly new system, there are still regular and frequent updates as adjustments are made and insights obtained. As PERM moves forward, so do the Backlog Processing Centers (BPCs) with regard to pre-PERM labor certification (LC) cases. We at The Law Office of Sheela Murthy, P.C. are dedicated to providing MurthyDotCom and MurthyBulletin readers with updates, as and when available, on these two important labor certification processing procedures.
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DOL Instructs Employers to Disregard Pre-July 15, 2005 Denial Notices
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The U.S. Department of Labor (DOL) has resubmitted and rerun all denied cases through its decision matrix. The agency has asked that employers and their attorneys disregard all denial notices issued from the beginning of PERM, on March 28, 2005, through June 24, 2005. These cases will either resume processing, which should be indicated on the online system, or will receive a new denial notice. The DOL has indicated that the 30-day appeal period will begin with the issuance of a new denial notice.
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If the denial notice is dated between June 24, 2005, and July 14, 2005, then the employer or employer's attorney should check the PERM online status screen. If the screen shows a processing status, then the DOL has indicated that the denial notice can be ignored. If the case still appears as denied, the DOL has asked that employers wait two weeks before filing an appeal to see if another notice comes. For cases where a denial is issued between June 24, 2005, and July 14, 2005, the DOL will permit 60 days, instead of the standard 30 days, to file an appeal.
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Employer Existence Check
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When a PERM case is filed, the DOL sends the employer an eMail asking the following questions.
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Are you, or do you work for, the employer referenced above?
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Are you aware that an Application for Permanent Employment Certification was filed on your behalf?
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Do you have an opening for a [job title] in [location]?
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Are you sponsoring [beneficiary's name] for this position?
If the
employer does not respond, the DOL will call the employer and repeat the
questions. The DOL expects the employer to be able to communicate in
English.
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Direct contact between a governmental agency and an employer is generally
not permitted if the employer is represented by an attorney, unless the
employer waives the right to have the attorney present. The legal
justification and position of the DOL to legally circumvent contacting the
attorney, disregarding the fact that the employer has chosen to have legal
representation, is unclear. Notwithstanding, the employer will need to
respond to these DOL questions in the affirmative for the PERM case to move
forward.
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Filing Fees Sought
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The DOL is seeking filing fees for processing labor certifications effective
from the start of Fiscal Year 2006. This will take some level of either
legislative and/or regulatory action and cannot simply be announced. We will
monitor developments regarding this issue.
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45-Day Letters May Not be Completed by September
2005
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The BPCs plan to have all cases entered into their system by the end of
September 2005. To meet this goal, they are not inputting complete data on
some cases. The 45-day letters, however, cannot be issued for each case
until it is fully entered into the system. Therefore, it is likely that some
cases will not receive 45-day letters by September 2005, which was DOL's
original timeline.
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BPCs Adjudicating Cases
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As MurthyDotCom and MurthyBulletin readers have been advised,
we at The Law Office of Sheela Murthy started to receive LC case approvals
from the BPCs since the week of July 5, 2005. We have continued receiving a
trickle of LC approvals over the ensuing weeks. Our readers will be notified
of processing dates and other information as we receive more approvals and
are able to analyze particular patterns. We continue to work on labor
certification cases filed under PERM, as well as those filed through RIR and
regular processing, all pending at the BPCs.
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2005 The Law
Office of Sheela Murthy, P.C. All Rights Reserved
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