August 30, 2005

Department of Labor Policy Shifts and Re-shifting

On August 8, 2005, the Department of Labor (DOL) issued a new FAQ responding to inquiries submitted in connection with the new PERM program. A portion of this most recent FAQ addressed questions about the ability of employers to file more than one application with the DOL on behalf of the same foreign national. The questions specifically ask if the sponsored foreign national can have one application filed under the old program (RIR) that closed on March 23, 2005 and a second application filed under the new PERM program, or more than one PERM application. The DOL’s initial responses in this FAQ suggested that contrary to long standing policy this would not be allowed. Fortunately, as a result of the strong outcry from employers and the immigration community, the DOL rescinded its recent guidance days after issuing the FAQ and issued a new revised version of the FAQ. This policy shift benefits American businesses and the foreign nationals who are contributing to our economy and our ability to compete in a global marketplace.

The initial policy change noted in the FAQ was not based or grounded in existing laws or regulations, but appeared to be one of many attempts being made by the DOL to reduce fraud which they encountered under the old program and which they hope to keep to a minimum with the new PERM program. The changes had they become effective on August 31, without formal rulemaking procedures followed, would have severely penalized employers and foreign nationals.

With the implementation of PERM and the promise of quick results from DOL, many foreign nationals and their employers have been filing a second application under PERM or had been contemplating this option. This apparent policy change made everyone stop and reassess their decisions to file more than one application.

Unfortunately, the permanent residence process through labor certification has been a long and frustrating process historically, PERM promises to change this, however with the retrogression of visa numbers new hurdles are encountered that continue to delay the process. With all of the changes occurring at the government agencies it is best to continuously reassess options and strategies as new policies and shifts in policies and interpretations of existing regulations are announced, almost on a daily basis. With each change the options for companies and foreign nationals change and greatly impact long term goals and decisions.

Greenberg Traurig will continue to monitor the situation, and work with clients and others to help ensure business needs are considered in any future rule making.