DOL Eliminates Labor Certification Substitution Effective July 16, 2007

On Thursday May 17, 2007, the United States Department of Labor (DOL) published a regulation in the Federal Register amending the current regulations concerning the Labor Certification process for the Permanent Employment of Aliens in the U.S. This final regulation will be effective on July 16, 2007.

Synopsis of the Final DOL Regulation

This final regulation includes the following major changes to current Labor Certification Practices:

1.        The regulation prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications;

2.        The regulation provides a 180-day validity period for approved labor certifications (Employers will have 180 calendar days from the date of the labor certification within which to file an I-140 Immigrant Petition for Alien Worker for the beneficiary of the approved Labor certification with the Department of Homeland Security (DHS));

3.        The regulation prohibits the sale, barter or purchase of permanent labor certification applications;

4.        The regulation requires employers to pay the costs of preparing, filing and obtaining a Labor Certification. The regulation strictly prohibits an employer’s transfer to the alien beneficiary of the employer’s costs incurred during the labor certification or application process;

5.        The regulation reinforces the existing law pertaining to the submission of fraudulent or false information and clarifies the DOL procedures for responding to incidents of possible fraud; and

6.        The rule establishes procedures for debarment from the permanent labor certification program.

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We Have Started Receiving PERM Approvals

Our office is happy to report that we have started to receive approvals for labor certification cases filed through the PERM labor certification system at a steady pace. The Department of Labor has stated that cases filed through the PERM system should be approved within 45 to 60 days. In many instances, cases are getting approved much quicker than this. We can only hope that this trend of quick approvals continues. For more information on PERM, please click here.

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PERM Filings - Some Problems Still Exist

The American Immigration Lawyers Association (AILA) reported this week that many of its members are still experiencing problems with the PERM online filing system. Many attorneys have been reporting that some of their cases that had been showing on the status screens as "denied" have now switched to "review pending," "audit" or some other status reflecting that the case is no longer denied. On the other hand, other attorneys who previously saw "review" or "audit" statuses are now reporting screens that indicate "denied". Still others report that previous "denied" screens have not changed. In response to AILA's inquiries about this to the U.S. Department of Labor (DOL), officials of the DOL stated all the issues with the PERM system's decision matrix have not been fixed yet, but the DOL is working to rectify the situation. The DOL stated that it will notify AILA when the changes are implemented and asked that attorneys and their clients be patient and not re-submit their applications.

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Why Me? Employers and the PERM Audit

This article will explain the Department of Labor (DOL) PERM audit. We will explore what a PERM audit is; reasons why an audit may occur; how the audit will be conducted; and what are the consequences for an employer if an adverse finding is the outcome of the application.

WHAT IS AN AUDIT?

Unlike the Reduction in Recruitment (RIR) or Traditional Processing (ROR) processes, which required the employer to provide documentary evidence when filing the application, the PERM process allows the employer to file the application to the Department of Labor without submitting any supporting documentation. The regulations guide the employer as to what is required for filing a PERM application, and instruct that all documentary evidence should be maintained by the company for a period of five years. In most instances, when a government agency allows filings to occur without the submission of documentation (i.e. income tax return) they establish an audit procedure to ensure compliance with the government regulations. In basic terms, a PERM audit is merely a request by the government for the employer to provide documentary evidence, which proves all information that the employer attested to in the PERM application. The audit determines that all statutory and regulatory requirements have been met for the PERM application. The DOL will determine the following when processing the PERM application: 1) Did the employer meet the procedural requirements of the regulations; 2) Was the U.S. labor force tested and no qualified U.S. workers were found; 3) Will the employment of the alien have a damaging effect on wages and working conditions for U.S. workers likewise employed. The following are examples of what a PERM audit may review: are the employer's job requirements too restrictive, does the wage offered by the employer meet the prevailing wage requirements, did the employer conduct proper recruitment and adequately test the U.S. labor market. An employer should gather and organize all documentation into a comprehensive file prior to submitting the PERM application. This documentation should be kept readily available in the event of an audit by the DOL for a period of five years. The DOL will no longer be issuing "Notice of Findings" (NOFs) as they had previously with the prior RIR and ROR systems. In the past, NOFs had allowed the employer to have an opportunity to correct any oversights that may have occurred in the application and resubmit the application for continued processing. The new PERM system will not issue NOFs, instead an audit letter will be sent to the employer requesting legal analyses and business necessity documentation in reference to the particular application under audit.

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US Department Of Labor Releases Latest FAQs On PERM

On June 1, 2005, the US Department of Labor released its latest additions to the list of frequenty asked questions (FAQs) that it has already compiled. The latest FAQs address issues pertaining to the filing of PERM applications, the withdrawal of PERM applications, the recruitment associated with PERM, and audits triggered during the PERM process. Below you can find for your reference, the complete text of the DOL's FAQs on PERM.

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Obtaining Proof of Filing of Labor Certification Application

The United States Department of Labor (DOL) recently provided the American Immigration Lawyers Association (AILA)with guideance on how to obtain documentation from the DOL Backlog Reduction Center that a labor certification application was filed more than 365 days ago. This is a very important issue for individuals currently on H-1B visas who are coming up on completling their six year term on H-1B status as in accordance with the American Competitiveness in The 21st Century Act (AC21), such individuals can extend theier H-1B visas in one year increments beyond the 6 year period provided that they can prove to the United States Citizenship and Immigration Service (USCIS) that they have applied for a labor certification application with the DOL at least 365 days prior to the completion of their sixth year H-1B term.

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LABOR CERTIFICATION BACKLOG REDUCTION- FREQUENTLY ASKED QUESTIONS

The US Department of Labor (DOL) recently posted some FAQs on the Backlog Reduction process addressing issues dealing with Reduction In Recruitment (RIR) case processing, Traditional Recruitment (TR) case processing, the issuance of 45-day letters, change of attorney, and etc. We have gone through these FAQ's and summarized them for your reference.

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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.

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PERM FOCUS GROUP

The Department of Labor conducted a focus group on 3/11/05 to review the form and filing process for the PERM labor certification program, which takes effect 3/28/05. Representatives of AILA's Labor Department Liaison, PERM Implementation and Business Immigration Committees participated.

Below is a summary of some of the key points that emerged.

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Immigration Options For Entrepreneurs Seeking To Start Ventures In The United States

An international entrepreneur's ownership of a U.S. business offers the entrepreneur a wide range of options for temporary and permanent immigration to the United States. Most nonimmigrant (temporary) options available to entrepreneurs are largely dictated by the individual's personal history, goals and investment. This article will explore the business immigration options for foreign nationals seeking to start new business ventures in the United States.

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PERM (Program Electronic Review Management) process.

What is PERM?

The final PERM regulation was published in the Federal Register on Monday, December 27, 2004. The rule became effective on March 28, 2005, 90 days after its publication. This means that all labor certifications filed from now on will be processed under PERM regulation. Below you will find an initial analysis of the new PERM process. In the coming weeks and months, we will provide more details and analysis on the various aspects of PERM.

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