DOL Proposes Changes in PERM for System Integrity

The U.S. Department of Labor (DOL) addressed questions related to proposed changes within the PERM labor certification process. The purpose of the changes is to enhance system integrity. The DOL also intends to propose legislation to allow for an employer-paid filing fee in connection with the PERM filing. A discussion follows, which describes the DOL’s explanation of the changes cited in an April 7, 2011 American Immigration Lawyers Association (AILA) stakeholders meeting.

FY10 Report and Balancing Case Processing with System Integrity

In part, the DOL Performance Report and Integrity Review for Fiscal Year 2010 (FY10) discussed the challenge of assuring integrity within the labor certification process while balancing issues of case backlogs and processing times. The DOL’s efforts to maintain integrity in the system, by conducting audits of PERM filings, as well as requiring supervised recruitment in some instances, are labor intensive. The DOL increased the use of these options in 2009, and, as a result, timeframes increased.

DOL Audits and Denials Presumably to Ensure Legal Compliance

The DOL reports that audits and supervised recruitment generate the highest number of PERM denials. These denials are viewed as enhancing the integrity of the system. The DOL concluded that, of the resolved labor certifications reviewed, slightly more than half was found to be in compliance with program requirements. (PERM applications are submitted with attestations as to compliance with the regulatory requirements, including recruitment efforts to locate U.S. workers. The DOL may audit to verify that the application in fact was prepared in compliance with legal requirements.)

PERM Form Expires June 2011 – New Form Not Yet Available

In the future, the DOL intends to scrutinize PERM filings more closely. The PERM form in use at the time of this writing is set to expire in June 2011. (Extensions of the validity are expected.) Changes to the form in the future will embody clarifications of program requirements, and more detailed information in portions of the form. The DOL stated its intention toward maintaining processing times, even with the increased audits and other efforts to verify compliance with requirements.

As stated initially, balancing the additional work of detailed case verification with processing times is difficult. As of early May 2011, processing times for PERM labor certifications have improved dramatically. This favorable development was discussed, and some historical processing time information provided, in our March 18, 2010 news article, PERM Processing Times Substantially Reduced. Changes within the DOL regarding more hands-on review of PERM filings is likely to have at least some impact on processing times.

DOL Proposes Processing Fees for PERMs

There is no filing fee associated with the PERM labor certification. In this way, the DOL is different from the USCIS, which charges substantial filing fees for almost all application and petition types. A legislative change would be required to allow the DOL to charge filing fees for PERM cases. The DOL stated its intent to propose such a legislative change to fund the PERM, H2A and H2B programs partially by fee revenue. Such fees are not required at the present time, and will not be required unless there is a change in the law. MurthyDotCom and MurthyBulletin readers will be updated on this important matter if and when there are further developments.

Conclusion

As of this writing, the DOL has not released a revised edition of the PERM form. When this occurs, readers will be advised of the key changes and likely impact on their cases, as well as any fee requirements that may result from legislative action. Given the possibility of such changes, it may be wise for employers to consider moving forward with PERM filings at this time, to take advantage of faster processing times and the absence of government processing fees.

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