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Even though the U.S. economy continues to display signs of improvement in an uneven economic environment, the waters remain murky when it comes to understanding the decision making process at the U.S. Department of Labor (USDOL) on PERM applications. What is the USDOL looking for when processing U.S. labor certifications or “PERM” applications?  This article will provide some background information on the recent trend at USDOL and what a foreign worker and U.S. employer may wish to consider.

The U.S. Department of Labor is becoming more restrictive in processing PERM labor certification applications for U.S. permanent residence

The USDOL is a key government agency that monitors the growth of jobs in the U.S. and protects the U.S. workforce.  It is also the key agency that determines whether there is a shortage of ready, willing, and available U.S. workers to fill a position that a U.S. employer is seeking to fill with a foreign worker.  The labor certification application (“PERM application”) is filed with the USDOL, and is a key process for foreign nationals who are sponsored by their employer for a green card. The USDOL is continuing to tighten its interpretation on whether the U.S. labor market was adequately tested to determine if a U.S. worker is available for the PERM position.  This trend has led the USDOL to continue to focus on minutia, from asking employers and foreign workers to attest that the employer did not make the foreign national worker pay for the labor certification process, to examining where exactly a notice for the job is posted.  Every aspect of the reach and scope of the employer’s recruitment efforts is under scrutiny.  It has made the process a virtual minefield, whereby the employer and employee will not know if a PERM application will be subject to a random audit, adding another 10 months to the process, or whether what was reliable in the past, is a bombshell in the future. This lack of transparency and clear guidance has led to frustration with the entire process.  There is a higher likelihood that any foreign national whose employer is looking to sponsor him for U.S. permanent residence via the PERM process, will face delays of up to a year or longer if the case is audited, or even a denial for a minor infraction.

Recent statistics show that as of August 5, 2013, the USDOL is reviewing PERM cases from August 21, 2012, cases filed almost a year ago. (see http://icert.doleta.gov for additional processing time statistics for PERM applications).  Where does that leave the employer and the foreign national looking to proceed with a greencard case?

What can an employer and foreign worker do?

Start early and document carefully

Our first suggestion is to start the greencard process as early as possible, and be careful when documenting each step of this complicated process.  PERM recruitment is not like real world recruitment where a job posting on Craig’s list may seem like sufficient evidence to show that the employer adequately tested the U.S. labor market for qualified, willing, and available U.S. workers.    Proof that an employer has done its due diligence under very specific USDOL guidelines on recruitment is a requirement.  Without knowledgeable guidance, it is easy for the employer to fall overboard while navigating these treacherous waters.

Think ahead and plan ahead

For foreign national workers who are know that they wish to remain in the U.S., establish this early on with your employer and negotiate sponsorship for U.S. permanent residence at the outset.  Although the future may be unpredictable, securing sponsorship for U.S. permanent residence as early as possible gives a foreign national a leg up on the timeframe.  Even if the case is audited, the priority date that determines how soon a foreign national may proceed with the last step for applying for U.S. permanent residence is established when the PERM application is filed.

In these difficult times for U.S. greencard sponsorship, it helps to think ahead and plan on how to tackle the shifting landscape on U.S. immigration matters, and the economic changes that continue to affect the protectionist tendencies of the USDOL

Written by Barbara Wong
SW Law Group, P.C.

September 2013