DOL launches new features related to PERM audits and email notifications

In order to reduce burdens on employers and streamline the PERM system, the Department of Labor ("DOL") has recently made several announcements relating to PERM email notifications and a new portal for submission of documents for PERM audits. PERM is the first step towards obtaining a green card for many foreign nationals who seek to live and work in the U.S. on a permanent basis. In November 2016, DOL announced that effective December 1, 2016 the Atlanta National Processing Center would begin issuing PERM notification letters via email to employers and attorneys in an effort to provide these case updates in a timely, cost effective manner without delays that can occur when they are sent via regular mail.  Stakeholders now receive the following letters/notifications via e-mail:

• Audit Notification Letters;
• Denial Notification Letters;
• Requests for Information Letters;
• Additional Audit Information Requests;
• Withdrawal Letters; and,
• Notices of Decisions from Appeals.

Please note that Certified ETA Form 9089 PERM application letters continue to be sent via regular mail due to the certification's security paper requirements in place with USCIS.

More recently, DOL announced that its Office of Foreign Labor Certification ("OFLC") allows submission of electronic documentation on the PERM Case Management System portal while a labor certification application is pending review and up to 30 calendar days after the notice of proposed final action is issued.  This new feature, effective April 15, 2017, will eliminate the need for employers or their attorneys to submit a response via mail, email or facsimile. For more information on the new feature, DOL recommends reading their PERM Quick Guide as it provides detailed information on the use of the system.

OFLC addressing two major PERM issues

Early last week, the Department of Labor's ("DOL") Office of Foreign Labor Certification ("OFLC") met with the American Immigration Lawyer's Association's ("AILA") DOL Liaison Committee for its quarterly stakeholder meeting. During their meeting, representatives from AILA and OFLC discussed a recent issue plaguing employers filing PERM cases on behalf of employees where the employer has used "competitive", "negotiable", "depends on experience", or similar language in reference to salary in some or all of its advertising, resulting in DOL denying the PERM. DOL's reasoning behind these denials was that U.S. workers might have been dissuaded from applying for these positions by the use of this vague (yet very common) language concerning salary. In its meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision on this point (Matter of TekServices) and in the interim they are suspending denials of pending applications that involve this salary language issue.

At that same meeting, AILA and OFLC discussed recent PERM denials based on non-qualified experience in Section H. 14 of ETA Form 9089. For example, if an employer's minimum requirements for the offered position listed in H. 14 involved 5 years experience in software development, in addition to experience with JAVA and .NET, DOL was determining that "5 years experience" applied to both software development and the experience with JAVA and .NET since the employer did not specifiy a different number of months/years experience with those computer languages. DOL was then denying PERM applications where it appeared the alien worker did not have all the necessary experience based on this standard. During the meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision (Matter of Smartzip Analytics) and they are suspending denials of pending applications that involve this H.14 non-qualified experience issue.