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Joel Stewart on PERM Labor Certification

Does PERM Have a National Origin Bias?

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I first got the idea of possible bias in Labor Certification processing when I noticed years ago that many of the NOFs (Notices of Findings) and Denials of labor certification applications were issued to Employers and Aliens with certain kinds of national origin.


If you were to review labor certification denials and appeals from BALCA, you would note that cases originating in certain ETA regions seem weighted disproportionately to Employers and Aliens from certain parts of the globe.


Just as the inspection of passengers at the airport is supposed to be mostly random, but is clearly based on certain stereotypes, so, it seems, was the selection of labor certifications selected for tougher review standards. The statistics to prove or disprove this theory are available from public records of cases processed and denied from that time and appealed to BALCA.


Now with PERM, there is electronic review management, and the computer does not know anything about national origins, but we also do not know much about how the PERM system selects cases for audit.


We doc know that if a anything is missing on a 9089 Form, the application will be identified electronically as incomplete under DOL's zero tolerance policy.


We also know that some questions and issues on the form have been identified as sensitive, such as requirements in excess of SVP or alien family or ownership issues.


But once an application has been flagged, there is a human factor that enters the decision to audit the employer, just as there is a similar factor at the airport inspection point, when certain kinds of individuals come forward.


I am not suggesting anything is wrong at the Employment and Training Administration, but there is a natural tendency for human beings to make judgments based on personal views and experience and not on the mathematical and physical certainties of science.


With audits delaying processing two years or more, there can be much at stake, if you are selected for a PERM audit. And I am still trying to understand why a lawyer from Detroit had multiple denials on PERM cases where the employer answered that the requirements were normal in the US, although in excess of SVP, and another colleague from a different city, with clients of different national origins, never had that experience.


Although electronic processing was created to engineer a faster, more efficient process for labor certification processing, it also has the advantage of being more neutral in the application of the regulations to specific groups of employers.


To allay our fears, DOL needs to provide the public with its standards for selecting cases for audits, rather than keep the process shrouded in mystery. 

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Comments

  1. Grace's Avatar
    I think this post is deceptive, and unfair to DOL. Positing whether DOL has a "national origin bias", but then offering no proof or documentation, absent a statement that an attorney from Detroit received multiple denials, whereas another attorney did not, is insufficient. Are their clients identical? Were all factors in the cases the same? Were the cases filed with the same NPC at the same time?

    If you want to claim that DOL has a bias, you should collect evidence to document this, and not simply offer an unsupported allegation. DOL has said on numerous occasions that it will NOT disclose what factors lead to audits, as this would compromise their ability to investigate cases, and would let employers try to game the system by avoiding audit triggers. So DOL won't respond to your charge, and you can tell clients "DOL refused to answer me", as if that proves you were right.

    If you have proof of bias, you should bring it to DOL (or to a judge with a suit) and ask DOL to address it - but throwing an allegation without proof is not appropriate.
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