January 2008

DOL Releases New PERM Labor Certification Statistics

The Department of Labor (DOL) recently released new statistics on the Permanent Labor Certification Program, otherwise known as PERM.  Implemented in March 2005, PERM is the first step in the permanent residence process. It is the means by which an employer must verify that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The statistics released by the DOL indicate that for the first-quarter of Fiscal Year (FY) 2008 (October to December 2007), 19,607 on-line and 1,060 mail-in PERM applications were filed.  Of the 23,000 total cases, 5% have been certified, 37% are in final review, 44% were selected for audit review, and 14% are in reconsideration or appeal.  For FY 2007, the top five states of intended employment remained California, New York, New Jersey, Texas and Florida.

These numbers show a very different PERM climate than barely one year ago in March 2007, the last time the DOL released statistics on the PERM program.  In March 2007, the DOL reported that from March 28, 2005 to March 2, 2007, of the 182,781 cases filed, 7% had been certified; 33% were in final review at the time of the report; only 20% in audit review and 40% under appeal.

The most obvious change in these statistics is the increase in the number of audits.  Specifically, in March 2007, the DOL reported only 20% of cases were selected for audit over the two year period.   In this last report, we see more than 44% of cases selected for audit - in only a three-month period.

The positive news, in 2007, the DOL reported that overall, 75% of cases had been certified and only 22% denied.  Overall, since March 2005, the number of cases certified has risen to 78% and the number of cases denied is slowly declining to 18%.  For FY 2008 alone, only 1% of the cases were denied.  We also see a 25% decline in cases going to appeal.

Now that the PERM system appears to be functioning without the initial glitches, automatic denials and sheer confusion on how to use the matrix system properly, the DOL seems to be more focused on administrative processing of the cases. This may explain the upswing in audit reviews.   Most of the audit reviews are standard requests for the employer to prove that the recruitment steps were completed according to the regulations. Nevertheless, we are also seeing requests to justify, what the DOL believes to be, excessive educational and experience requirements, particularly for computer and other engineering occupations.

The DOL report also reported the following major program highlights:

• Re-Engineered ETA Form 9089 (under comment review; implementation planned for summer 2008)
• Planning upgrades to PERM system
• Implemented courtesy email notifications on certifications and withdrawals  

The DOL report can be accessed, courtesy of AILA, at the following link: http://www.aila.org/content/default.aspx?docid=24274.

GT will provide further updates as statistics and information on the PERM program as they become available.