Lawyers are reporting, and our office is experiencing, that some Applications for Alien Labor Certification are being approved within 90 days without audits. This is the case even when the minimum requirements for the positions exceed the SVP. This is promising news for those of us who feared that almost all new PERM cases would end up in the DOL’s “Audit Black Hole”.
To balance out the good news, those cases that were audited, some of which are fast-approaching their one year anniversary from the dates of filing, for the most part remain unadjudicated. My two cents is that the DOL is deciding how it will handle the cases audited for exceeding the SVP based on the following factors: (1) the adequacy of the business necessity evidence provided in response to the audits; (2) whether having answered “no” to the question of whether the position’s minimum requirements as stated in the ETA 9089 exceed the “normal requirements” should result in an automatic denial regardless of evidence presented to show actual business necessity; and (3) whether the agency is open to arguments that their manner of determining whether a position’s requirements exceed the SVP is mathematically flawed and is without basis in the regulations.
In sum, lawyers and employers will probably be getting a slew of certifications or denials once the DOL moves on these audited cases. As with all things immigration-related at this time, only time will tell how this resolves.
