DOL's Immigration Dereliction - The Continuing Perils of Hilda and Her PERM
When we last left our heroine, Hilda Solis, the Secretary of Labor, she faced uncomfortable and still-unanswered questions about why her agency shrinks from performing its statutory duty to determine labor shortages while playing mountebank to American and foreign workers and U.S. employers. The source of the bureaucratic trickery, we learned, is the "labor certification" process, a specious test of the labor market now known as PERM.
As with any good ruse, PERM began with a promise of performance, an assurance that the new system, in most cases, would be faster than its predecessor. A new online system with unexplained, behind-the-scenes technical prowess -- the Department of Labor (DOL) assured us -- would process cases quickly and in a more "user-friendly" way: "[An] electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed [69 Fed. Reg. at p.77328, 77358 (December 27, 2004)]."
As the Congressional Research Service (CRS) reported, PERM replaced a two-track system (the fast track known as "Reduction in Recruitment," or RIR, and the slo-mo track dubbed "Standard Processing"). RIR, when it sizzled, produced labor certifications in under a month, sometimes in just a week. Standard Processing took anywhere from two to five years and in some cases, as CRS noted, six years or more. PERM introduced a three-track system: (1) a computer-generated decision available in 45 to 60 days, (2) an "Audit" process, and (3) "Supervised Recruitment."
While the DOL's latest self-appraisal for FY 2009 grades the "data quality" of the foreign labor certification program as "Very Good," the DOL missed its goal of a six-month process (from the filing of the application to agency decision) by a wide margin: "Only 19 percent of permanent labor certification program applications were processed within six months."
Although computer-generated PERM decisions are supposedly issued within the 45-60 day window, the DOL on the "PERM Processing Times" tab of its iCert Portal says wait "three months" before making an inquiry on a delayed case (thereby generating skepticism about the reliability of the published statistics). Moreover,a processing backlog has developed (of unreported dimension), for which DOL is targeting a "goal for FY 2010 . . . to reduce the backlog by 50%." Meantime, DOL cases designated for "Audit" take two years and appeals are completed in two-and-a-half years. Unlucky applications that must undergo Supervised Recruitment take an unknown, but longer period, which the DOL apparently lacks the courage to disclose on its PERM Processing Times tab.
This DOL-devised recruitment effort is unlike any in the real world of business. The employer must use print ads despite the overwhelming predominance today of internet-based recruiting. The required "prevailing wage" is often inflated because it must be divined in a square-peg/round-hole process from an online DOL database listing fewer than 2,000 occupations, dumbed-down for bureaucratic convenience from the previous Dictionary of Occupational Titles, a compendium of over 40,000 job descriptions. The employer must consider as qualified for the advertised position any job applicants (though lacking the minimum requirements) whom the employer could train in a "reasonable" time. Also up for mandatory consideration are applicants who are clearly over-qualified for the job even though experience has taught that many over-qualified new hires grow bored quickly and soon resign. These are but a few of the deviations from real-world recruiting concocted by the DOL. [Source: "U.S. Labor Department to Immigration Lawyers: You're All Just Potted Plants," by Angelo A. Paparelli and Ted J. Chiappari. Footnotes omitted.] [For additional blog postings on PERM's failings, see here, here, here, here, here and there.]
Potemkin Village is an insufficient descriptor for the PERM process. The "village" allusion seems too low to the ground. Tower of Babble better describes the hollow edifice that the DOL has erected to camouflage the agency's shirking of its statutory duty to declare labor shortages. Page upon page of dense regulations were not enough to answer all the questions that PERM has raised. At last count, the DOL has supplemented its regulations with:
- 10 sets of equally dense FAQs,
- A 33-chapter pre-PERM Benchbook issued as a second edition in 1992 by the Board of Alien Labor Certification Appeals (BALCA), with occasional supplements (that still contains post-PERM legal concepts that must be mastered),
- Scores of BALCA en banc and federal court decisions spanning the period from 1988 to 2006, and
- Recent decisions, described by my colleagues Cyrus Mehta and William Stock, adding more mud to an already opaque process, identify how humanly imperfect DOL's "letter-perfect" PERM system has proven to be, and require time-consuming case remands from BALCA to the DOL Certifying Officer (or start-from-scratch employer do-overs) that will only enlarge and prolong the backlog.
There should be little surprise that the DOL's concoction of the labor certification process has resulted in what armchair psychologists might describe as passive-aggressive behavior. The DOL's professed mission says nothing about the important national interest in fostering the economic benefits of immigration:
[DOL] fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. [Bolding added.]
Hilda and her predecessor (Elaine Chao) have been wearing the same PERM since 2004, and it's become even less attractive with the passage of time. Please, Hilda, get a new 'do. Start reporting on the "changes in employment" your agency has been "tracking." Scrap that hideous PERM and start announcing labor-shortage occupations, as immigration law requires.