PERM Adjudications Slowed Markedly in Late 2008, January 2009
In Light of Economic Conditions, Supervised Recruitment Is Expected to Increase
In a meeting with industry stakeholders held earlier this week, the Department of Labor (DOL) released statistics on the processing of PERM applications for labor certification and indicated that applications would be more frequently subject to increased scrutiny and to recruitment that is directly overseen by a DOL Certifying Officer.
Current PERM Caseload and Processing Times
As of December 31, 2008, the agency had a caseload of 53,200 active PERM cases. DOL statistics indicate that processing times for these cases slowed down significantly over the past several months. According to DOL, the adjudication slowdown occurred when the agency retained a new contractor to assist with PERM processing and the transition from the prior contractor took longer than expected.
Pending cases fall into separate PERM processing queues, each with its own processing times. The agency is now reviewing cases filed in June 2008 to determine whether they should be audited or subjected to recruitment supervised by the agency (discussed below), or whether they can be approved or denied without further processing. Sixty-seven percent of the active caseload is at this stage of processing. The agency is also working on cases initially filed in August 2007 that are now in the audit process. Approximately 26% of the current caseload is under pending audit. (Note that audit rates may be much higher in specific industries.)
Cases that have been denied but are now under reconsideration or on appeal make up 5% of the current PERM workload. With respect to appeals of cases that were been denied on substantive or procedural grounds, DOL indicates that it is currently processing cases that were initially filed in April 2007. A separate appeals queue exists for cases that were denied due to government error; DOL has not specified processing times for these cases, but indicates that there are no backlogs in this queue. Finally, roughly 2% of the active caseload consists of cases that are awaiting the employer's response to the sponsorship questionnaire that is sent after a case is initiated.
The DOL statistics are a snapshot of the current caseload and do not present an overall picture of labor certification adjudications.
Supervised Recruitment to Increase
In the present economic climate, the Labor Department is concerned about the availability of U.S. workers in the employment market. As a result, it is expected to require more employers to conduct labor certification recruitment under the direct supervision of the agency.
In general, DOL can require supervised recruitment whenever it believes such recruitment to be appropriate, though it has seldom done so since PERM was introduced in March 2005. As unemployment increases, however, the agency may begin to focus on applications from employers in industries and geographic areas where large-scale layoffs have occurred. Supervised recruitment orders may not be confined to new cases; they could also be issued in cases that are already in process at DOL. The agency estimates that supervised recruitment could add 180 days or more to a case's processing time.
When supervised recruitment is ordered, all previous recruitment carried out before the employer filed its PERM application is disregarded, and an entirely new – and potentially quite costly – recruitment campaign is begun under the direction of the Certifying Officer. Before the employer can begin recruitment, the Certifying Officer must approve the contents of job advertisements and will instruct the employer where and when to place the advertisements. The Certifying Officer can also order additional recruitment methods. Applicants will submit their resumes to a designated DOL post office box, rather than sending them directly to the employer. DOL then forwards the applications to the employer or its representative.
The employer will be required to consider all U.S. workers who apply for the position, and to submit a detailed recruitment report to the Certifying Officer within 30 days of the Officer's request. In the report, the employer must list each applicant and detail the lawful, job-related reasons why the applicant was rejected for the position. Note that an applicant cannot lawfully be rejected if he or she is minimally qualified but could acquire the skills needed for the position during a reasonable period of on-the-job training. The Certifying Officer will consider all recruitment information and supporting documentation to determine whether to grant or deny the application for labor certification.
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