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.

DOL Stakeholder Meeting: no final rule likely before end of Obama's term

As reported in minutes from a recent stakeholders meeting, officials from the Employment and Training Administration's Office of Foreign Labor Certification dashed any hopes for significant change to the current Permanent Labor Certification ("PERM") program.  Publication of a Notice of Proposed Rule Making may be possible before the end of this calendar year, but the Office of Foreign Labor Certificate has indicated it is "highly unlikely" that any final rule could be implemented before the change in administrations. 

The PERM program is the first step in obtaining employment-based permanent resident status for the majority of foreign-born skilled workers in the U.S. The current regulations have not been updated in well over a decade, despite how much has changed in our economy and industry recruitment practices. Many employers criticize the current regulations as out of step with worker or industry needs and conditions. 

In connection with President Obama's Executive Actions on Immigration, originally introduced in November 2014, the Department of Labor ("DOL") announced it would conduct a review of the PERM program and regulations and seek input from stakeholders on how the regulations could be modernized to be more responsive to the realities of our current national workforce. Among the topics discussed at several listening sessions with DOL included the handling of harmless errors, recruitment venues, addressing audit backlogs, and the retroactive application of new policies. We will continue to update you in our newsletter when DOL finally publishes a Notice of Proposed Rulemaking for the modernization of the PERM system.

DHS increases fines for I-9 and other immigration violations

As of August 1, 2016, DHS's new rule increasing fines for I-9 and other immigration violations is now in effect.  DHS, in cooperation with the Department of Justice ("DOJ") and the Department of Labor ("DOL") has increased civil fines against employers who commit immigration-related offenses, such as Form I-9 and E-Verify violations, H-1B visa program violations, unfair immigration employment practices and unlawfully employing foreign nationals. Although the increased penalties are applicable only to penalties assessed after August 1, 2016, they will apply to violations committed by employers going back to November 2, 2015.
 
The penalty increases are substantial because the federal agencies are adjusting fines for inflation from the dates of initial enactment of the I-9 rules in 1986.  For instance, penalties for violating the Form I-9 identity and employment eligibility verification provisions almost doubled from a range of   $110 - $1,100 per violation to a range of $216 - $2,156 per violation.  When violations are coupled with multipliers for each offense, the fines can add up to hundreds of thousands of dollars and even into the millions very quickly.  If you have questions about I-9 compliance or compliance with temporary worker visa programs, please contact one of the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

DOL announces OFLC Emergency Processing Initiative for Backlogged H-2B Applications

The U.S. Department of Labor's ("DOL") Employment and Training Administration's Office of Foreign Labor Certification ("OFLC") is presently experiencing significant delays in processing employers' H-2B temporary labor applications. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary, non-agricultural jobs. OFLC's adjudication delays are the result of several factors, including a seventeen-day pause at the Chicago National Processing Center earlier this year to enable OFLC to implement changes to the revised H-2B prevailing wage and certification standards. As a result of these delays in the certification process, employers seeking to hire foreign workers to fill temporary, non-agricultural jobs pursuant to the H-2B program are experiencing significant delays. These delays can create instability for a number of small businesses that depend on temporary and seasonal workers. To address the needs of these businesses, DOL is implementing emergency processing initiatives to assist in the alleviation of the applications backlog. For more details on these emergency processing initiatives visit DOL's website.