z**k
发帖数: 945 | 1 http://www.lexology.com/library/detail.aspx?g=568ecc36-c5c6-4d2
PERM applications: longer processing times and continued scrutiny by
Department of Labor
Faegre Baker Daniels
Beth E. Carlson and Sarah R. Kilibarda
USA
August 21 2013
Faegre Baker Daniels logo
Beth E. Carlson Author page » Sarah R. Kilibarda Author page »
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 the importance of exactness and constant awareness of
trends at the DOL. 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 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 denied 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
Certifying Officer of the Department of Labor. 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. | l****l
发帖数: 3394 | | p******i
发帖数: 1358 | | b*********r
发帖数: 651 | 4 那不是audit的基本上都被拒了...毕竟直接据的是少数..
假设40%,audit,10%当场被拒,50%通过,那不是意味着audit的全部被拒?
【在 z**k 的大作中提到】
: http://www.lexology.com/library/detail.aspx?g=568ecc36-c5c6-4d2
: PERM applications: longer processing times and continued scrutiny by
: Department of Labor
: Faegre Baker Daniels
: Beth E. Carlson and Sarah R. Kilibarda
: USA
: August 21 2013
: Faegre Baker Daniels logo
: Beth E. Carlson Author page » Sarah R. Kilibarda Author page »
: Applications for Permanent Labor Certification (PERM) continue to face
| k**i
发帖数: 10191 | 5 Read it carefully, 40% audit, 50% of audit cases got denied.
【在 b*********r 的大作中提到】
: 那不是audit的基本上都被拒了...毕竟直接据的是少数..
: 假设40%,audit,10%当场被拒,50%通过,那不是意味着audit的全部被拒?
| y***l
发帖数: 6963 | 6 就这样烙印还是老中人数的十倍
【在 k**i 的大作中提到】
: Read it carefully, 40% audit, 50% of audit cases got denied.
| l******7
发帖数: 4449 | | n******e
发帖数: 957 | | R****9
发帖数: 375 | 9 haha, you must be a tennis fun, ready 陈君乐's weibo, hehe!
【在 n******e 的大作中提到】
: 我屮艸芔茻尼玛怎么这么严峻？？？？
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