27 December 2016

PERM Denial Upheld for Pay Raise During Recruitment Process

Pay raises in the middle of the PERM process can be tricky. What do you do if you’ve issued a pay raise to the PERM beneficiary between recruitment and filing the PERM application? Continue reading

13 October 2016

PERM Wage Determinations Causing Significant Delays in PERM Filings

As part of the PERM Labor Certification process, an employer must obtain a Prevailing Wage Determination (PWD) from the Department of Labor (DOL). The DOL issues a PWD based on the specific position, the requirements for the position, and the area of employment. An employer must, at a minimum, pay a foreign worker the prevailing wage for that position.

We have noticed a gradual increase in PWD processing times. Currently processing times have increased to almost 4 months. This can cause a significant delay in processing the PERM labor certification application. Here’s why:  Continue reading

8 September 2016

DOL Ordered to Modify PERM Validity Dates in the Case of the Missing Labor Certification

In order to sponsor a foreign worker for a green card, an employer must usually submit an Application for Permanent Employment Certification (ETA Form 9089) to the Department of Labor (DOL). Once an application is approved, or “certified”, the DOL Certifying Officer (CO) who reviewed the case will issue an original labor certification on blue paper and mail this document to the employer or attorney of record. The labor certification will be valid for 180 calendar days and will need to be submitted with the I-140 Immigrant Petition during the 2nd step of the employment based green card process. An initial I-140 Petition cannot be submitted to the United States Citizenship and Immigration Services (USCIS) once the labor certification has expired.

But what if the original labor certification was never received by the employer and is no longer valid? Where there is no evidence that it was delivered, will the DOL then reissue a labor certification with new validity dates to allow an employer to timely file an I-140 Petition? This issue was discussed in a recent Board of Alien Labor Certification Appeals decision, Gazebo Contracting Inc., 2012-PER-02679 (BALCA August 12, 2016).  Continue reading

2 September 2016

PERM Approval on Reconsideration: Qualifying Experience Gained with PERM Employer

During the PERM recruitment process, an employer may advertise for a position that requires certain experience that is considered typical for the position. Such experience must be limited to actual minimum requirements necessary to perform the PERM position. This creates difficulty in establishing the employer’s actual minimum requirements because “actual minimum requirements” is a term of art not specifically defined by the Department of Labor (DOL).

Continue reading

10 August 2016

2016 3rd Quarter PERM Stats Released: PERM Labor Certifications Continue to Rise

The Department of Labor (DOL) released 3rd Quarter PERM statistics for Fiscal Year (FY) 2016, and it looks like filed PERM Labor applications continue to rise and India continues to top the list of PERM Labor applications certified so far this year. 

Review of Applications Certified in FY 2016 to Date (October 01, 2015 to June 30, 2016): Continue reading

25 July 2016

The Impact of a Familial Relationship on PERM Labor Approval

Question C.9 on the PERM application states, Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the [foreign worker]?

It seems like such an easy question, but if the employer indicates on the Application for Permanent Employment Certification, ETA Form 9089 (PERM application) that a familial relationship exists, you should expect an audit from the Department of Labor (DOL). Under these circumstances, the DOL usually initiates an audit to ensure no undue influence exists in an offer of permanent employment to the foreign worker. While an audit does not mean that the PERM application will be denied, you will want to be prepared with supporting documentation.   Continue reading

3 March 2016

Starting PERM Processing Between Now and May? You May Want to Read This!

My colleague, Paloma Feghali, and I would like to discuss PERM processing during this time of year, where submission of prevailing wage applications will result in a 90 day validity period of the wage determination. If you do not plan carefully, you are looking at a smaller window of time to submit PERM applications. Continue reading

29 January 2016

PERM Denial Reversed: DOL’s Own Fault for Employer’s Typographical Error

The Board of Alien Labor Certification Appeals (BALCA) issued a decision on January 08, 2016 that effectively blamed the DOL for the employer’s typographical error. As you may remember from one of my previous posts, typos are no laughing matter when it comes to PERM – Tips to Improve Your Chance at an Approved PERM Labor Certification.  Although there are many BALCA cases that have upheld denials for innocent typos on ETA Form 9089 (AKA PERM Form), in this instance, fundamental fairness called for reversal of denial.  Continue reading

10 August 2015

What’s with the PERM Audit?: Recognizing PERM Audit Triggers from the Get-Go

Ever wonder why some PERM applications are audited? Although PERM audits can be issued at random, there are some audit triggers you should watch out for from case initiation. Continue reading

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28 July 2015

Minor Mistakes Can Cost You Big: PERM Denial Upheld for Minor Recruitment Report Mistake

The dreaded words no one wants to hear, “PERM is an exacting process.” The “exacting” process is designed to eliminate the back and forth between applicants and the DOL in order to create a more efficient process. Though this phrase should be outlawed at this point :-), it definitely encompasses the painstaking and detail oriented process that is PERM, where the DOL favors efficiency over fairness at times. A good example of this “exacting” process comes from a case decided by the appeals Board earlier this year: Simply Soup Ltd, 2012-PER-00940 (en banc decision, 01/13/2015). Continue reading