Recently, the DOL released stats for PERM cases. Of particular interest is that the denial/withdrawal rate has increased to over 25% and of the over 24,000 cases currently pending, over 6,000 are being audited. Processing times for cases with the exception of BALCA appeals remains under 1 yr which by historical standards is excellent.
As we advised you in our Aug 2nd post, the DOL suspended issuing PWD's and to date there has been no official announcement regarding a return to full service. There have been multiple reports of attorneys receiving a scattering of PWD's last week but, it does nto appear that a full scale return to operations as normal occurred. At HLG, attorney Sherry Neal received 2 but, none of the other attys. received any. (I attribute that to her good living). Obviously, this delay has created a variety of problems for many clients which include ads expiring and having to be placed again, internal postings expiring in the Sch A context, and employees not being able to file to preserve 7th year extensions, among others. We will keep you updated as developments occur.
In a recent decision, a US employer was held liable for back wages of over $150,000 for a terminated H-1b worker that it never even employed. When the employer chose not to employ the worker and in essence, withdrew its employment offer, it failed to notify the USCIS. The Judge stated, "Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when itsigns the labor condition application: the duty to pay the required wage rate. Until itdoes, the employer remains on the hook for the H-1B worker's wages and benefits. Forthe price of a postage stamp, the Employer often can absolve itself of further liability."
The DOL is currently providing the following update on the issuance of prevailing wage determinations: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. At this time, there is no indication as to when the processing of PWD's will resume. The commencement of recruitment activities to support PERM filings will be delayed. We will provide updates as they become available.
If the political parties can't agree on a budget and the government shuts down on Fri. as threatened, the implications to various agencies involved in immigration processing are significant. Although, much is not yet announced it is likely that there would be little impact to the USCIS as they are primarily funded by fees whereas the DOL and the US Consulates would be essentially closed. Only "essential functions" woudl be available during a shutdown. It is conjecture but, believed that no DOL function relating to immigration processing would be deemed essential so no LCA's, no PERM processing, etc. It is also likely that all visa appointments at US Consulates would be cancelled. We will keep you updated with official information as it becomes available.
The DOL announced today that all of the PERM filings made by the national law firm Fragomen will be subject to audit due to claims of the law firm being improperly involved in the rejection of U.S. workers. Given the vague nature of the regulation in question, this action could prove to be enlightening and provide a much needed drawing of the lines between the employer, alien, and the law firms' roles in the PERM process.
The DOL recently released FY 2007 data on the PERM program. The complete report can be found at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Data_FY07_Announcement.pdf The data revealed that there was an 86% approval rate. The data also revealed that almost 50% of the cases filed required MS degrees or higher which indicates that the EB2 category may remain retrogressed for the foreseeable future. It was also interesting to note that only 21% of all cases filed were filed by the IT industry.