The DOL recently released FY 2017 2nd Q PERM data. Note that the denial rate has increased slightly and over 25% of cases are either under audit or appeal.
Read the latest BALCA decision and then openly weep for the state of our employment based immigration system. In this case, the DOL Certifying Officer denied a PERM case on the basis that the ad language stated "may require employer-reimbursed travel" instead of "some positions may require travel" and determined that US workers could be confused by such language and not be aware that travel may be required. I'm sorry but, if you are mis-led by that language, you do not deserve consideration for employment in any job. The fact that the Certifying Officer even thought there may be confusion is beyond comprehension. Fortunately, BALCA ruled in the employer's favor and ordered the case to be certified but, the appeal took almost 2 years and the overall case has been pending for almost 4. Sadly, of the 3 government agencies most involved in business immigration cases, the DOL, in spite of decisions like this is still light years ahead of the USCIS and the US Consulates (DOS) in following the law without prejudice and in operating efficiently.
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.
Slowly but surely, the DOL has once again resumed isusing PWD's submitted to support H-1b or PERM applications. The DOL is currently procesisng PWD requests received in late June. They have released data that shows a backlog of approx. 15,000 for the months of July and Aug. The DOL has also advised that it plans to dedicate additional resources from its other product lines to deal with these backlogs. Although the curent procesisng time of approx. 90 days is 45-60 days longer than we had previously enjoyed, it is a far cry from the dire delays predicted by many in the bar. Sometimes I get the impression that attorneys like to exaggerate things to create a crisis where none exists and in doing so, we often overlook a real crisis but, maybe that's just me.
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.
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.
And you thought you got a denial on a PERM case for a crazy reason, check this out. In a recent decision that makes you shake your head, BALCA overturned the denial of a PERM application by the Certifying Office (CO). The Certifying Office had declared that it did not believe that the employer had a physical location because the employer used a Post Office box to receive mailings. The employer was Tarleton State University, a fact that frankly, I think is pretty definitive on the issue but, that, the CO ignored. In its decision, BALCA pointed out to the CO that the employer had 950 employees and a campus, pretty clear evidence of a physical location. Further, in a pointed conclusion, BALCA noted, " as there is no indication that the CO actually reviewed the merits of this application, the most appropriate remedy is to remand this case to the CO for continued processing." Kudos to BALCA for this decision, unfortunately, the case has been pending since 2009 so the wheels of justice are certainly turning slowly.
In a recent decision, BALCA, once again applied common sense and reason which, has not always been the case but certainly, seems to be a recent trend. In the most recent case, BALCA declared that if a PWD contains 2 wages, that the employer must proceed with the higher wage in its PERM case.
In two BALCA decisions released this week, the Board overturned denials of PERM cases and ordered the Certifying Officer to re-consider, basing both decisions on the doctrine of fundamental fairness. One of the cases involved the area of intended employment. In that case, the job offer listed the geographic location in the ETA 9089 as Spartanburg, SC however, the Job Order and advertisment dircted applicants to Inman, SC. Originally, the CO denied the case claiming that the job location was not properly described in the recruitment activities. The fact that Inman is a suburb of Spartanburg and located a mere 7 miles distant did not persuade the CO. However, reason and common sense prevailed at BALCA. And, not to throw cold water on the party but, the appeals process only took a mere 18 months and the PERM has only been pending since 2007. The second case has facts that are hard to believe and made me just shake my head at my tax dollars at work. The CO denied the case because they were unable to verify that the employer was truly sponsoring the foreign national. As proof of their attempts to communicate with the employer, they indicated that they had made phone calls on 4 occasions. Sounds sufficient to me until they disclosed that all 4 calls were over a 2 1/2 week period that included 2 days before Christmas and a call on New Year's Eve. No voice mails were left and no emails sent. Turns out the employer contact was on vacation during the holidays and that explained the failure to answer the phone. What is so sad is that the employer explained all of this a mere 3 weeks after the denial and still the CO refused to re-open the case thus requiring the employer to file the appeal and now, 15 months later, the right decision has been made [...]
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.