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Filings under audit fall to 13 percent
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The Department of Labor (DOL) released statistics for the Permanent Labor Certification Program (PERM) for fiscal year 2015, showing a jump in the number of filings, and a significant drop in the number of filings being audited—from nearly 1 in 3 in 2014 to just 13 percent.
The PERM process is the first step in the employment-based green card route for many foreign nationals. It is a highly regulated process, with the DOL requiring information from the employer on the job opportunity (such as the worksite location, duties, requirements and prevailing wage); information on the employer’s recruitment process for U.S. workers (such as where the employer placed the ads and on what dates); and information on the foreign worker (such as the worker’s place of birth, education credentials and work experience).
The DOL received a total of 87,644 PERM applications in fiscal year (FY) 2015, a 17 percent increase from the previous year. Of those, 78,938 were certified, 5,851 were denied and 4,362 were withdrawn. About three-quarters (77 percent) of the certified applications are in the process of being reviewed by DOL analysts, 13 percent are in audit review, 9 percent are under appeal and 1 percent remain in the sponsorship stage.
Andrew Wilson, a partner in the immigration law firm Serotte Reich Wilson, based in Buffalo, N.Y., believes one reason for the increase in volume could be due to a greater number of people who’ve already filed for PERM in the EB-3 category refiling in the EB-2 category in order to expedite the process and get out of the lengthy EB-3 green card backlog.
Another reason could stem from the general churn in the labor market in 2015, with more people changing jobs. “When PERM-approved workers change jobs and start with a new employer, they have to start the process over again,” he said.
After holding steady between 25 percent and 33 percent over the past few years, cases flagged for audit review dropped significantly in 2015 to 13 percent. Wilson said that could be because the DOL has relaxed its automatic triggers—certain fact patterns that would automatically trigger an audit—from years past. “For example, in the past, if you filed a PERM that didn’t require any education, you’d get an audit. I filed three of those this year and none received an audit. Maybe DOL has taken a more common sense approach and thought ‘we can’t cast this huge net and have this many audits and still be able to process cases,’ because an audit can take up to a year for the agency to process.”
The denial rate for filings in 2015, at around 7 percent, hasn’t changed very much since last year.
Wilson noted, however, that the DOL “has been denying PERM applications when the language doesn’t list a salary or salary range in the recruitment postings and instead just says something like ‘depends on experience’ or ‘is negotiable’ or ‘we offer a competitive salary.’ ”
Employers sponsoring foreign workers for PERM are required to obtain a prevailing wage determination from the DOL, and the wait time can be burdensome. “They’re at about six months right now, which is reasonable,” Wilson said.
The procedure for determining a prevailing wage needs an overhaul, Wilson said. “The way it’s set up now, either you’re entry level or you’re advanced, and there’s not a lot of real range there for most workers.”
Workers Who Filed for PERM
The DOL also released the top occupations, worksite states, industries, visa classifications, countries of citizenship and minimum education requirements of certified PERM applications in FY 2015.
The most common occupation classification for a PERM filing in FY 2015 was the same as FY 2014: computer and mathematical (58 percent).
Other top occupation classifications were:
The most common country of citizenship for a PERM beneficiary was India (58 percent), and the most common visa classification was H-1B (78 percent). About half (49 percent) of PERM filings required an advanced degree as the minimum education requirement.
After India, the most common countries of citizenship for PERM beneficiaries were China (8 percent), South Korea (6 percent), Canada (4 percent) and the Philippines (2 percent).
The top five worksites were California (24 percent), Texas (16 percent), New Jersey (8 percent), New York (8 percent) and Illinois (4 percent).Roy Maurer is an online editor/manager for SHRM.
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