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Joel Stewart on PERM Labor Certification

Hard Times for PERM Cases

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Along with the financial, political and other crises that we face, labor certification has finally landed on hard times.

For many years, there was a low unemployment rate in most parts of the US, and job offers went unanswered in the SWAs and traditional recruitment like newspapers. Only the very highly paid positions were in demand.

Now with unemployment rising, the number of job seekers has grown, and some employers placing PERM applications are receiving larger numbers of applications.

At the same time, DOL's stepped up scrutiny of PERM applications, which began in late 2007, is in full swing, with processing times growing. Routine audits may now take between a year and a year and a half, and motions to reconsider may take as long as two years or more.

For those of you who are "old timers," this is reminiscent of pre-PERM times, when applications for labor certification routinely lasted many years. Under current trends, one might wait six months for an initial decision, another 1.5 years for a decision on a response to an audit, and another 1-2 years for a response to a motion to reconsider.

Another adverse factor is that DOL is targeting employers whose cases should be processed by "supervised recruitment." Although "supervised recruitment" is not objectionable per se, it is an additional step that might add to the processing time

Thus the prospect of 3-5 year wait for labor certification approval has become a reality for some, and labor certification approval should be more difficult due to an expanding pool of US workers.

DOL and the Immigration Bar are battling out a battle of ethics, regarding the attorney's role in labor certification processing, so practitioners should be careful that especially in hard times, with more job applicants for Employers to consider, great care should be taken so that each application is handled with great propriety.

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