News Update - September 6, 2008
By Alan Lee, Esq.†‡
Department of Labor v. Fragomen, Del Rey - Long Backlogs for Labor
Certification Applications a Looming Consequence
In the on-going federal court tussle of the major immigration law
firm Fragomen, Del Rey, Bernsen & Loewy, LLP, against the Department
of Labor (DOL) over PERM (Program Electronic Review Management System)
labor certifications in which Fragomen is accused of unduly interfering
in the employer's selection process of U.S. workers for the position
in question and in turn accuses DOL of overreaching in trying to
limit attorneys' advice to employers throughout the labor certification
application process, what is most alarming to everyone is the looming
disaster of many labor certification applications running from two
to five years from now on. DOL has announced that it will audit
all of the firm's labor certification applications. In DOL's opposition
to Fragomen's motion for a preliminary injunction, DOL stated figures
adding up to approximately 3700 Fragomen represented labor certifications
being audited.
The PERM process was instituted to replace Reduction-in-Recruitment
which in turn replaced Traditional Recruitment, all changes made
for the purpose of speeding up labor certification applications
which had been languishing for years with DOL. Indeed the prime
purpose and chief selling point of PERM was its promised speed.
PERM appeared to work well as long as the DOL was still concentrating
on its backlog of over 360,000 cases from the 1990's-early 2000's.
But with the ending of the backlog by September 2007, DOL began
to use many of its freed up employees to give harder scrutiny to
PERM applications. In the DOL Stakeholders Meeting of July 15, 2008,
DOL stated that it was currently working on audited cases with priority
dates of March 2007. That is already a delay of over one year for
audited cases and DOL also earlier provided statistics showing that
audits of cases are increasing nationwide to 44% of cases submitted.
With the Fragomen cases being thrown into the mix, there is more
than serious doubt that DOL has the necessary manpower to handle
the audits within any reasonable time frame, and the old story of
waiting for years for a labor certification will probably ensue
unless DOL changes course and returns to its pre-end-of-backlog
way of adjudicating labor certification applications. While we are
not advocating labor certification processing without standards,
DOL must have some compromise to attain speedy processing and at
least stop its current nitpicking on many cases.
Although DOL may wish to retain many of its backlog employees, it
should place them in other positions rather than concentrating on
issues such as attorneys advice in labor certification applications.
They could be put in more productive roles which might include fixing
the PERM process to allow flexibility so that every typographical
error or wrong placement or failure to fill in the space does not
cause an application to be denied. Or the PERM process could be
altered to allow limited changes to the application after submission
to the DOL either before or after an audit is mandated.
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