Department of Labor's Latest Update on PERM Denials

The Department of Labor (DOL) implemented the PERM (Program Electronic Review Management) program on March 28, 2005. The PERM program replaced the old labor certification process that was in place for well over 25 years. Labor Certification is the first step for most employment based permanent resident petitions. The transition to PERM has not been as smooth as the Department of Labor and many immigration law practitioners had envisioned it to be. Since the implementation of PERM, many attorneys have been reporting that they are getting a result of "denied" when they check the automated case status system for cases that they have submitted. At first, these denials were believed to have resulted from a system error. However, upon further investigation, DOL determined that these cases were in fact denied cases. These cases have been denied, not on substantive grounds, but rather on PERM's rule-based system that automatically denies these cases on certain bases. PERM is an electronic filining system that has certain denial triggers encoded within itself. Therefore, it is important to be very diligent in preparing and filing PERM based labor certification applications. The DOL has addressed this issue of denials in a recently released set of Frequently Asked Questions (FAQs) and also in a response to questions posed by the American Immigration Lawyers Association (AILA). This article summarizes these materials and provides an update on the PERM process.

Some of the reasons provided by DOL for these automated denials are:

• The DOL takes the position that only OES prevailing wage determinations dated March 8, 2005 or thereafter can be used when filing the PERM labor certification with the DOL. In those cases where employers have utilized OES wage determinations dated prior to March 8, 2005, cases have automatically been denied.

• The State Workforce Agency (SWA) job orders must have been placed for at least 30 days. Where work orders were placed for less than 30 days, those cases were denied. Many employers had placed work orders in the month of February which was a 28 day month. Therefore, if a work order was placed from 02/21/2005 to 03/21/2005 that job order would have only been posted for 28 days. Therefore, employers must be very careful in calculating the number of days for which each job order has been placed.

• The DOL has denied a number of applications that were submitted prior to the 30 day period after the end of the recruitment period. As per DOL guidelines, in addition to the aforementioned SWA work order, the employer must also run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. If the job opportunity is located in a rural (not suburban) area that does not have a Sunday newspaper, the employer may use the edition with the widest circulation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the following10 recruitment efforts:

1. recruitment at job fairs;
2. recruitment on the employer's website;
3. job search website other than the employer's site;
4. on-campus recruiting;
5. use of trade or professional organizations for recruitment;
6. use of private employment firms;
7. employee referral program with incentives;
8. use of campus placement offices;
9. use of local and ethnic newspapers;
10. or use of radio and television advertisements.

These recruitment steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification. In many cases where PERM based labor certifications have been denied, the employers have filed the case with the DOL before this 30 day period has run.

• PERM guidelines specifically state that only employers can register to use the online PERM system. Once the employer registers, they can create a sub account for their attorneys. The registration must be submitted by an individual with actual hiring authority. The DOL has indicated that it has the ability to track the source of registrations and PERM cases may be denied if they can trace an employer registration to an attorney or agent’s computer.

• Finally, another common reason for denials has been where an employer has stated that they did not offer the job to the foreign national who is listed as the beneficiary on the application.

Another issue that many employers are facing with the new PERM system is that it is taking them weeks to get their PIN from DOL once they register on to the PERM system. The reason for this is that the DOL verifies the existence of every employer that attempts to register on to the system. Initially, employers received their PIN number within a matter of hours. However, now that more and more employers are attempting to register, it is taking employers an average of two to three weeks to receive any feedback on their registration. Due to the length of the time it is taking DOL to provide feedback, many employers have sent in multiple registration requests which are making this problem even worse. The Department of Labor has requested that employers only register once on the PERM system.