March 2006

DOL Continues to Move Back the Permanent Labor Certification Process

The Long Hard Facts

The Department of Labor (“DOL”) is continuing its efforts to revise and improve the labor certification process which impacts both the permanent and temporary employment of foreign nationals in the United States. To this end, over the course of the last six months, DOL has issued two sets of proposed changes to key labor certification programs.

In mid-July, DOL issued new regulatory guidance regarding employer filing procedures for both permanent and temporary labor certification applications, in order to streamline applications and minimize the delays which have historically plagued the labor certification process. The Department continues to encourage employers to file their permanent labor certification (“PERM”) applications on-line, using the new Permanent Online System, to reduce the potential for employer fraud or the inadvertent submission of incomplete applications. DOL’s expectation is that these improvements will help employers by facilitating faster responses to these applications while also protecting employees by reducing the opportunity for submission of fraudulent applications. Although the number of fraudulent applications has been minimal in comparison to the volume of valid filings to date, it has nevertheless become a hot button issue for DOL. For similar reasons, the Department has issued final regulations requiring online filing of most Labor Condition Applications (“LCAs”) as well . As this and other related federal guidance have required periodic changes in filing locations for various applications, the July guidance also includes a reference chart which outlines the processing locations.

In an added attempt to reduce the opportunity for fraud, DOL has also proposed additional regulatory amendments limiting the use of labor certifications under the PERM program. This amendment would propose to eliminate an employer’s opportunity to substitute or replace an employee for whom a PERM application has already been filed or approved with a new foreign national employee who also meets the minimum requirements of that labor certification. Historically, an employer’s ability to substitute one employee for another (who has left the company or otherwise no longer needs the labor certification) has proven beneficial; such action can save employers additional costs in time and money to fill critical positions. Without this option, if the first sponsored employee leaves the job, in order to replace him/her with another foreign national employee, the employer would again have to conduct the required recruitment. Once recruitment is complete, a new labor certification application would have to be filed on behalf of the new employee. Such duplicative efforts are a detriment to the entire process, as it unnecessarily delays the new employee’s hiring and needlessly expends DOL resources in adjudicating virtually identical petitions for a position that DOL has already determined to be difficult to fill with U.S. workers. This regulation has been listed in the DOL’s semi-annual regulatory agenda for publication within the next few within the next few months.

Lastly, DOL has also discussed a 45-day deadline for employers to file their I-140 immigrant visa petitions with U.S. Citizenship and Immigration Services, once DOL has certified the PERM application. Because this is the second step in the permanent residency (“green card”) process, this proposed deadline could lead to substantial hardship to the employer. The I-140 application requires the employer’s verification of a number of factors, including its ability to pay the employee and the general bona fides of the company. Gathering such documentation can be time consuming and, according to DOL’s recent proposal, if the employer is unable to do so within 45 days of receiving a labor certification, the employer could lose all benefit of its initial application to DOL and be forced to apply all over again. If this proposed deadline is put into place in the future, it will have to be factored into an employer’s plans for its foreign national employees.

Given the complexities of the permanent labor certification process which have resulted from the fluid nature of these rules, we strongly recommend that organizations with nonimmigrant employees seek immigration counsel in order to be sure that they are in compliance with the laws latest requirements. We have experts in labor certification at all levels who can provide specific guidance with respect to these and other related issues.