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DOL's Attorney-Unfriendly PERM Labor Cert. Filing System, Pt. 1. By Roger Algase

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The following post has been revised as of 8:16 pm on December 27.

Christmas has always been a festive holiday for me, as it has been for many other good Jewish boys growing up in New York. When I was young, not only did my family have a Christmas tree, with lots of presents, but I believed in Santa myself until one year when I was about 12 or 13 and he failed to solve a chess problem that I had left under the tree for him.

(Notwithstanding, my belief in Santa was refreshed only a couple of weekends ago when my wife and I were walking around in midtown Manhattan and ran into what must have been hundreds of young people dressed up in full Santa regalia heading to or from various neighborhood bars and looking festive indeed! Some of the young women were even wearing reindeer hats. Surely, one of those young people must have been the real Santa Claus. I cannot believe that they were all impostors.)

My own Christmas this year, however, was decidedly less festive - the least festive, in fact, that I can ever recall, despite having a rather generous number of Christmas days under my belt. This is because virtually the entire day, from early morning until late at night was spent trying to deal with a US Department of Labor (DOL) online Labor Certification filing system, known as PERM, which was set up to be less than friendly to attorneys trying to file applications on behalf of their employer clients.

In fact it might not be a gross exaggeration to suggest that if SONY Corporation wants to protect itself more effectively against alleged hacking by North Korea, the company could do worse that to retain the DOL as a consultant to install some the security features that the agency uses to protect itself against immigration attorneys who are merely trying to carry out their responsibilities according to law.

As every PERM labor certification lawyer knows, the DOL has a number of security features in place to make sure that attorneys do not file Labor Certification (PERM) cases online without the express permission and authorization of the employer.

Going around these security features by filing hard-copy paper applications through mail or courier is permitted, but not encouraged, and the DOL warns that a number of things can go wrong in that event - indeed that the DOL itself is likely to make sure that something will go wrong. Listing these hazards is beyond the scope of this comment, but I have yet to hear of anyone who has actually filed a hard-copy paper PERM application in the almost one decade since the PERM on-line system was put in place. Verbum sat sapientis. ("A word to the wise is sufficient.")

In order to use the on-line system, first, the employer must set up a PERM account with the DOL. This involves some back and forth procedures detailed in the DOL's 50 page online user's guide, and can be subject to delays while the DOL investigates whether the business exists, is at the stated address, etc. Naturally, the employer's account must have its unique user name, password and PIN number.

After the employer's own online PERM account has been set up. the employer must then set up an online attorney's sub-account complete with the attorney's own password and user name, together with the same employer PIN number.

The attorney then receives an email from the DOL confirming that the above sub-account has been set up (with a warning that the DOL assigned password for the account must immediately be changed and the email deleted - is this to guard against the possibility that the attorney might actually be able to find his or her user name when it is needed)?

The attorney might also have access to the employer's main account - especially as most employers have better things to do than spending time on PERM filing mechanics themselves - but woe betide any employer who allows the attorney to file a PERM application from the employer's main online account, rather than the attorney's sub-account. This is definitely a no-no and can result in denial of the PERM application if the DOL traces the filing or any other activity on the employer's main account to the attorney's computer, rather than the employer's.

To return to my own personal Christmas day story, in the days leading up to the holiday, I had been guiding my client through the steps of reinstating its long-unused PERM account (since it is a small company which has not sponsored many PERM cases in the past) and then advising it about setting up my attorney's PERM sub-account. Reinstating the employer's dormant account took a day or two to hear back from the DOL but setting up the attorney's sub-account is relatively simple and only takes a few minutes. It is one of the few features of the system that works relatively quickly. Of course, it can only be done by the employer, not the attorney.

By the day before Christmas, we were ready to go, (or to rock and roll, as the ancient expression used to say). I spent a lively Christmas eve filling out the ETA 9089 PERM application, with all of its "Kellog" language and other legal as opposed to technical minefields, and finally I reached the last page, which had instructions to input the employer's PIN number before hitting the "submit" button.

At that point, to use a non-Yuletide expression, everything started to hit the fan.

To be continued.
___________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

His practice is primarily focused on H-1B and O-1 professional and skilled worker visas, J-1 trainee visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases.

Roger has helped immigrants from many parts of the world overcome the obstacles of our complex immigration system and achieve their goals of being able to live and work in America. His email contact address is algaselex@gmail.com


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Updated 12-28-2014 at 12:25 PM by ImmigrationLawBlogs

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