March 3, 2006

DOL Addresses the PERM Process: Labor Certification Applications

The Department of Labor (DOL) released additional guidance and information on February 24, 2006 addressing issues and queries that have been raised in connection with the new PERM process, as well as automatic denials. One of the issues addressed involves how the DOL handles an employers request to correct a Labor Certification Application when the employer has already filed the application with incorrect or incomplete information. Currently an employer cannot make corrections to an application after the application is filed or submitted. If the application is submitted electronically or by mail, then it is considered final and no changes are permitted. This rule applies to all contents of the application even typographical errors.

Opponents of this PERM procedure believe that the system needs to be amended to allow for correction or alteration of information after the submission of an application, especially when typographical errors are resulting in automatic denials instead of audit letters for clarification and correction. Supporters of the system believe that by amending the system and allowing for corrections after submission, the automated PERM process will lose its strict adherence to business rules, thus becoming less efficient and creating more backlogs. This change would then become very time consuming and costly to not only employers, but also the State Workforce Agency (SWA), and the Federal Government.

As it currently stands if an employer believes that an error materially affects the accuracy or verifiability of a filed application, then the only choice to correct the mistake is to withdraw the application and file a new application with the changes and/or corrections. When filing a new application, all the accurate information used for recruitment with the first initial application, (that is still applicable and current), can still be used to support the new application. This would only work if recruitment has not already expired, while in some instances denials are being issued within days, there are other instances where denials are not issued for weeks. During this time the required recruitment may become to old and new recruitment would be required to file a new application. Opponents of the current system ask then why not allow for corrections to be made after submission; are not both methods equally affecting the backlog of applications awaiting processing?

If the application for certification is denied for any reason, a new application can be filed at any time, unless the employer has filed an appeal for the file to be reviewed by the Board of Alien Labor Certification Appeals (BALCA). However, if an appeal is filed, a new application for the same occupation and the same alien cannot be filed while the appeal is pending.

Given this stringent application of its business rules, the DOL is placing the full burden for ensuring the accuracy of the contents of a PERM application entirely on the employer, even when the error is on the part of the SWA or an otherwise harmless typographical error that in no way invalidates the bona fides of the recruitment or the job offer. Without some flexibility, this is bound to lead to the loss of thousands of dollars in recruitment efforts. Any time an application is denied for technical reasons resulting from a typo, and if the recruitment has expired, employers will be forced to start from scratch with replacement of costly advertisements, and the re-dedication of valuable man hours.

GT will continue to monitor and provide updates on these policies and guidelines.