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Joel Stewart on PERM Labor Certification

File PERM on Time Despite Problems with On-Line Registration

Rating: 5 votes, 5.00 average.


A recent BALCA decision illustrates the problems that some Employers have registering on-line to use the electronic filing system. Sometimes it just doesn't work! Efforts to correct errors or bugs by e-mailing DOL, writing letters, or calling do not always bring results.


PERM applications have to be filed within 180 days of the first date that recruitment is begun. According to DOL's Zero tolerance policy, the 181st day will not do. Absolutely no errors are permitted.


The entire PERM process may hypoethticaly completed in 61 days in states where the SWA does not create unusual delays to issue prevailing wage determinations. The minimum time for Notice and Recruitment requires 30 days, and there is a 30 day waiting period. Hence, on the 61'st day Employers should be able to file their applications.


Unfortunately, real life applications just take much longer than that, and the 61 day minimum period often stretches out to four or five months, and soon it will bebthe 180th day. If the Employer has not been successful to register on-line, the application may not be successfully filed as planned.


What to do?  File late?


In the matter of Art O Frame, BALCA 2009-PER-150, the Employer did the wrong thing by not filing the application until after the 180 day period. The Employer blamed it on DOL, a rasonable argument, but if the registration system does not work, it's the Employer's fault, not DOL's fault.


Here is a solution to the problem, if it should almost happen to you.


Prepare a paper application, get it signed by the parties, and place it in a courier envelope ready to send on the 179th day. Continue to prepare the electronic application.


As the 180th day approaches,  and the employer has still been unable to register on-line, you will be glad you have a paper one ready to go.


Now, either on the 179th day, or earlier if you want to be more prudent, you send the PERM application to DOL, but continue to try to register on-line. If the electronic filing finally works, for example, at 11:59 on the 179th day, then you may push the "send " button and file the application electronically.


Of course you cannot file two applications, and you already filed one in paper.


Solution? Withdraw one of the applications, preferably the paper application, and continue with the electronic filing.


What are the advantages of filing electronically anyway....?


There seem to be two. First, the paper applications are keyed in by DOL personnel, and if any errors occur, the Employer will be held responsible, and proving the mistake was DOL's fault may result in audits and a delay of several years. Second, paper applications go into a separate queue, waiting to be keyed in, thus adding extra processing time.


In the Matter of Art O Frame, the Employer was late, due to problems with the on-line registration process, but the made the mistake of placing all his PERM eggs in one electronic basket.



 


 


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