Those who have been through the PERM labor certification process are aware of how labor-intensive and difficult it can be for employers to complete this usual first step of helping a foreign-national obtain permanent residence through employment. For a professional position (which is any position requiring at least a bachelor degree), there are three additional recruitment steps in addition to the newspaper ad, posting with the state job bank for thirty days and posting the job opportunity notice for ten consecutive business days at the place of employment that must be undertaken.
It is an expensive and stressful undertaking for the employer as well as for the foreign-national whose green card process depends on the success of the application. The DOL at times certifies cases fairly fast, sometimes audits cases causing them to remain pending for many months and at times denies cases after audit. Our firm’s experience and anecdotal evidence suggests that denials are sometimes correct and oftentimes not in accordance with the law which requires employers to request BALCA review or reconsideration by the certifying officer. This adds many additional months to the process that was designed to streamline labor certification adjudications.
Reasons for denial rarely have to do with the applicants who were rejected or with a genuine belief that a recruitment step has not taken place. Rather denials are frequently due to a technical mistake or typographical error or a claim that evidence submitted is not what the regulations state it “can” be. For instance, a letter from a newspaper submitted stating that it ran the internet Help Wanted ad, includes the text of the ad and the dates the ad ran in some instances will be acceptable and in others will lead to the denial of a case stating that a printout of the online ad was required. The regulations say that such a printout “can” be used as evidence that the job search Website ad was posted. There is also no requirement in regulations for how long an online ad must run, it could run for one day or thirty. If an employer chose to run the ad for thirty days, what evidence would be acceptable for the DOL? A printout from one random day, the first day and last day, or would a printout of each day the ad was posted be required? The only way one could be sure that the evidence would withstand DOL scrutiny, would be to submit a dated printout for each day the ad was posted in response to an audit.
The lessons? Dot every “i” and cross every “t” because in this era of “gotcha!” PERM adjudications one can never be too sure of what the DOL will accept as acceptable evidence in response to an audit. What they accept today they may reject tomorrow and oddly enough, the reverse is true as well. Also, start the PERM process early if the foreign national is in H-1B status as the ability to extend an H-1B beyond six years is dependent on the PERM application being filed before the beneficiary has been in the US in H-1B status for 5 years. If an employer files early and a case is wrongly or rightly denied, there is usually time to re-file. On the other hand, when an employer waits until the last few months before the fifth year in H-1B occurs, this leaves all parties in a precarious situation if the application is denied – rightly or wrongly.
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