DOL Guidance on Post-Government Closure Issues07 Nov 2013
The U.S. Department of Labor (DOL) issued guidance on October 31, 2013, regarding PERM labor certification cases impacted by the recent government shutdown. During the shutdown, it was not possible to use the DOL Office of Foreign Labor Certification (OFLC) electronic submission systems. The guidance addresses treatment of filings that were mailed, hand-delivered, or eMailed during the federal government shutdown. It also addresses time-sensitive filings that were not submitted due to the shutdown, and sets a November 14, 2013 deadline for all such filings.
Transmissions Treated as Filed on Oct 18th or Timely Filed
The OFLC accepts and processes prevailing wage determination (PWD) requests as well as PERM labor certification applications through the electronic system known as iCert. The shutdown lasted October 1-18, 2013. The iCert system was nonoperational during this time. In light of this, some applicants submitted their requests by mail, hand delivery, or eMail.
The DOL guidance states that all submissions received between October 1 and October 18, 2013 will be treated as if they were received on October 18th. For PERM cases, this means that the filings will be assigned an October 18, 2013 receipt date, which is the priority date of the case. However, there is a key accommodation in PERM cases. In the event that the assignment of the October 18th priority date would create problems for an otherwise timely-filed case, due to recruitment and PWD-related validity deadlines, the case will still be considered timely filed.
Filings by Nov 14th Considered Timely Filed
Employers and attorneys faced difficult decisions during the shutdown. While it is possible to file PERM cases via mail, it is normally a much slower process that generally is avoided. Some, therefore, decided not to file PERM cases during the shutdown and took a wait-and-see approach. The DOL has made an accommodation for such cases that otherwise would have invalid recruitment or PWDs due to the delay in filing. Such cases will be considered timely filed, as long as they are submitted on or before November 14, 2013. The DOL notes that the iCert system is programmed to issue a warning whenever an application includes certain information that normally would be automatic cause for a denial. The DOL, however, will not actually deny cases that meet the above-mentioned criteria.
Responses to DOL: November 14th Deadline
Similar to cases that were not filed due to the shutdown, there were employers or their representatives who did not respond to DOL requests due to the shutdown. The DOL is extending the deadlines of these cases until November 14, 2013. With respect to PWD requests, this accommodation is extended to responses to requests for information. For PERM filings, this deadline extension applies to: sponsorship verification, audit responses, responses to requests for information, responses to requests for review of supervised recruitment advertisements, responses to supervised recruitment, and responses to notices of intent to revoke or debar.
Responses Not Filed Electronically
Employers who mailed, hand-delivered, or eMailed the types of responses listed above during the government shutdown will have their responses considered as received on October 18, 2013. The DOL indicates that employers should not resubmit such responses, unless they have received notices stating that a submission was not deliverable. It is safest for employers to seek legal advice with regard to how best to proceed whenever there is a question about whether a case will be treated as properly filed within the deadline.
The government shutdown and lack of prior guidance created a great deal of uncertainty, particularly for cases with deadlines. The clarifications and accommodations provided by the DOL are appreciated. Given the short November 14th deadline, those who did not file time sensitive matters due to the shutdown will need to act quickly.
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