Applications for permanent labor certification (PERM) continue to face intense scrutiny, increased audits and denials by the Department of Labor (DOL). Recent decisions by the Board of Alien Labor Certification Appeals (BALCA) highlight this trend. Although there have been no revisions to the regulations, changes in adjudication standards have resulted in a significant increase in audits and denials. Additionally, processing times are only getting longer at the DOL. This means that cases must be started earlier and earlier to satisfy H-1B and other expiration dates.
Background on PERM Process and DOL Processing Times
As background, the PERM labor certification process is the first step in the permanent residence process for most employers sponsoring foreign national employees under an employment-based permanent residence process. With the PERM process, the company must conduct recruitment and prove to the DOL that there are no willing, able, available and interested U.S. workers for the position recruited for and outlined in the PERM labor certification application that is filed with the DOL. As part of this processing, the company must conduct the necessary PERM recruitment through newspaper ads, Internet postings, a posting with the state job bank, internal and in-house media postings at the company, and other recruitment sources as outlined under the rules of this process.
After the PERM recruitment period has been completed, the applicants that have applied for the position are reviewed as part of the company’s good-faith recruitment effort, and the company completes a recruitment report. If the company can establish that there are no willing, able, available and interested U.S. workers for the position, the company can move forward and electronically file the PERM application with the DOL. After the PERM application has been filed, DOL will process the application by approving, denying, sending an audit for more information and asking the company to conduct another process called supervised recruitment.
At the recent conference of the American Immigration Lawyers Association, DOL reported that approximately 42 percent of all cases are audited and of those, 50 percent are denied. Given the high number of audits, processing times have also increased significantly. PERM cases not subject to an audit are currently being adjudicated in about six months. Such processing is about double the time of what processing had been in late 2012. Additionally, processing times for cases that have been subjected to PERM audits are being processed in about 12 months after the response to the audit has been provided to the DOL. With such longer processing times, employers must plan ahead and start the permanent residence process early to account for these delays.
Current Issues Under Scrutiny by DOL in Recent Audits and Denials
With the increased number of audits and denials, DOL has been scrutinizing many issues with PERM applications. Many of these issues concern the recruitment and analysis of U.S. workers, as well as the notice provided in the recruitment announcement regarding the position and requirements. The current list of requests in PERM audits includes the following:
- Confirmation that the foreign national employee did not pay for any part of the PERM process.
- Evidence that there was a nexus between the employee referral program and the job opening.
- Confirmation that U.S. job applicants were rejected for lawful job-related reasons.
- Evidence to show laid-off workers were properly notified and considered.
Reports of recent denials by DOL have been based on the following:
- Use of a combination of education and experience and/or use of alternate requirements.
- Requirements that appear to be tailored to the experience of the foreign national employee.
- Requirements that are unduly restrictive.
These recent audits and denials reflect that DOL is scrutinizing PERM cases to ensure that U.S. workers are being adequately protected throughout this process.
Overview of BALCA Decisions Confirming Stricter Scrutiny of PERM Applications
When a PERM case has been denied, the employer has the right to appeal the decision to BALCA. Recently, BALCA has been very active in its review of PERM cases. Through its decisions, BALCA has provided additional guidance to employers about the PERM process, recruitment under the PERM regulations, and the required analysis of whether a U.S. worker is qualified for the posted position. Some recent cases include:
*Matter of Siemens Water Technologies Corp, BALCA Case No. 2011-PER-00955 (July 23, 2013): BALCA upheld denial of PERM application where employee worked from home office, and this opportunity was not listed in the advertisements as an option.
*Matter of Riverwalk Education Foundation, Inc., BALCA Case No. 2012-PER-02882 (July 3, 2013): BALCA affirmed the denial of the PERM application where travel requirements were not listed by the employer in the ads.
*Matter of Sushi Shogun, BALCA Case No.: 2011-PER-02677 (May 28, 2013): BALCA affirmed the denial of a PERM application where there was a 10-cent difference between the offered wage listed on the ETA-9089 and the prevailing wage determination. This decision effectively overruled earlier decisions and requires that PERM applications be error-free.
*Matter of Select Int’l, Inc., BALCA Case No.: 2011-PER-01478 (September 19, 2012): BALCA upheld denial in a situation where a resume showed a broad range of experience, training and education and then employer had a duty to investigate the applicant given its willingness to accept a combination of education, training or experience.
*Matter of Prosoft Associates, BALCA Case No.: 2011-PER-01209 (August 3, 2012): BALCA upheld denial of PERM application where state job bank listed drug testing/background checks and these requirements were not listed on the ETA-9089.
*Matter of Kennametal, BALCA Case No.: 2010-PER-01512 (March 23, 2012): BALCA found that employer improperly rejected several U.S. applicants without interview.
These and other decisions from BALCA reflect that PERM applications will continue to face additional scrutiny when being processed by the Department of Labor and by BALCA should the employer decide to appeal a denial by the DOL. Review and analysis of these BALCA decisions is warranted when working on any PERM application. With the longer processing times, additional audits and stricter review of PERM applications, employers and foreign national employees should start the PERM process in as sufficient time as possible to avoid unnecessary delays.
Beth E. Carlson is counsel and Sarah R. Kilibarda an associate attorney in the Minneapolis office of Faegre Baker Daniels.
© Copyright 2013 by Faegre Baker Daniels LLP. All rights reserved.
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