PERM Approvals More Common
Posted Sep 02, 2005
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As regular readers of MurthyDotCom and the MurthyBulletin are aware, the U.S. Department of Labor (DOL) started approving PERM labor certifications at the end of May 2005. This was reported in our June 3, 2005 MurthyBulletin article, PERM Approvals. This follow-up to that earlier report shares with our readers some of our own experiences at The Law Office of Sheela Murthy regarding PERM approvals. This should prove helpful to employers and allay fears regarding automatic delays or denials.
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Processing Time Estimates under PERM
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The DOL has stated that the processing times for PERM cases are approximately 45 to 60 days. Of course, these timeframes, and those discussed below, are measured from the time the case is filed with the DOL. As explained in other articles available on MurthyDotCom, there is work that has to be completed prior to the filing of the PERM case. This work, including recruitment efforts, generally takes at least four months.
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It seems that they are actually now at a point where at least some of the cases are moving through the decision matrix much more quickly. We at The Law Office of Sheela Murthy were very pleased to receive an approval in late August 2005, for a case that had been filed less than one week before! This is thrilling for us, as well as for the fortunate foreign national and his employer. We have also had a number of other PERM approvals in August 2005 for cases filed in late July 2005. Thus, these cases took less than a month from filing to approval. We have found that the more recently filed cases are moving through the PERM decision matrix more quickly than those that were filed earlier. The earlier approvals were more in keeping with the higher end of the DOL estimated timeframes. Unfortunately, there appear to be cases filed as long ago as April and May 2005 that are still pending.
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Occupations Approved under PERM
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Our approvals have spanned a range of occupations. They include computer professionals, as well as professions such as veterinarian and aerospace engineer.
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Audits - Education and Business Necessity
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Rumors that checking off certain items will always result in an audit are not necessarily accurate. Merely selecting "other" in the educational requirement does not automatically trigger an audit. While other attorneys have reported receiving audits for these cases, this is not a uniform effect. Our Office has selected the "other" option for educational requirements, when appropriate, and obtained approvals without any audit.
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In any event, while everyone wants his or her case to go through smoothly and quickly, there are times when it is necessary to submit a case that could result in an audit. An example of this would be those PERM cases for which the business necessity argument must be submitted.
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Essentially, the concept of business necessity comes into play when an employer's minimum job requirements exceed what the DOL thinks are the appropriate minimum requirements for a position. In these situations the employer must be able to justify that its minimum requirements exceed those determined by the DOL, due to some need pertaining to the employer's business. Job requirements exceeding the DOL "zones" for education and experience will trigger an audit. However, there are problems and inherent defects within the zone system that result in lower minimum job requirement assessments than those that were utilized under the prior system. Thus, it can very well be the case that the employer really does require more education and experience than reflected by the assigned job "zone." Since the entire purpose of the labor certification process is to determine whether there are qualified U.S. workers available for the position, assessment of the minimum qualifications for the position is vital.
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In those cases where the employer's business needs, with respect to the education and/or experience for the position exceed those determined by the DOL, an audit is virtually certain. We do not think that this means it is necessary to shy away from the situation, however. The term "audit" strikes fear into most people's hearts. They associate it with the dreaded Internal Revenue Service (IRS) tax audits. The DOL PERM audits are more in the nature of "document your case." They require the same type of documentation of business necessity that would have been submitted previously under the pre-PERM labor certification system. If the case is properly prepared, and the audit file ready as required, the paperwork should be readily available to submit if there is an audit.
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Conclusion
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We at The Law Office of Sheela Murthy are pleased to regularly receive prompt PERM approvals. We are also happy not to have received any substantive denials of our PERM filings. The PERM system is full of nuances, and is quite literal with respect to setting forth the employer's requirements and the beneficiary's qualifications. We have all learned a great deal since the PERM regulation was issued in December 2004. We are gratified to know that this edification is paying off in approvals for our clients.
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