Increased Rate of ETA 9089 PERM Labor Certification Denials – Fact or Fiction?

One of our major practices is the processing of employment-based permanent residency applications, most of which require an ETA 9089 PERM labor certification.  As a result, we handle a number of PERM labor certifications filings, appeals and other related matters.  Our office has been receiving an increasing number of inquiries about possible increase in PERM denials and/or audits.

Observations from Our Practice

We take special measures to ensure that each PERM application we file is prepared extremely carefully and that any potential PERM audit or denial “red flags” have been addressed.  These include carefully checking the recruitment periods and deadlines, prevailing wage dates, job duties and requirements, and salary, among others.  The Department of Labor (DOL) has started issuing more denials on clerical mistakes – for example, for omitting (harmlessly) specific text from the required PERM notice of posting or from failing to properly document certain steps of the recruitment.

PERM labor certification applications are very technical in nature and require very close following of the relevant regulations and procedures.  By following these carefully, we have been able to secure great results for our clients and we have not noticed increase in PERM audits or denials based on our direct experience.

DOL Comments – Increase in PERM Denials

Our direct experience of not seeing a notable increase in PERM audits or denials is, on the other hand, contradicted by DOL.  During October 28, 2010 Stakeholders Meeting, DOL has acknowledged that  there are increased denials.   According to the meeting minutes, DOL confirms that there is an increase in the PERM denials:

DOL indicated that the increase in PERM denials is due to a number of factors, including staffing changes and an increase in the number of cases filed. At the end of September 2010, DOL moved from multiple staffing contracts, which covered positions ranging from analysts to network support, to one consolidated, performance-based contract. The new capacity has enhanced processing in a variety of areas, and has resulted in increased production. With the increase in staffing, DOL now has the capacity to deal with issues that it could not deal with previously, and the consolidated contract has resulted in higher standards. In addition, DOL indicated that an increase in the number of PERM filings over the past months has resulted in a greater number of denials.

It is interesting that DOL cites the reason for the increase in PERM denials the more robust staffing and better training to its officers.  Essentially, DOL acknowledges that it would continue paying close attention to more of the PERM requirements, including enforcing the clerical requirements (some of which “harmless”) which have caused some recent denials.

Responding to Audits – Failure May Trigger Debarment

In addition to the rate of denials, DOL has specifically addressed the failure of some employers to respond properly or at all to audit notices.  DOL has confirmed that it has seen increased number of employers fail to respond or fail to adequately respond to a PERM audit notice.

DOL has indicated that with its improved staffing it will start looking at these failures to (adequately) respond to a PERM audit notice and would start to enforce more strictly punishments for such failures.   DOL has specifically warned that as a result of failures to report to audit notices,  the number of revocations (of already approved PERMs) and employer debarment proceedings will increase.

Conclusion

DOL’s recent comments do in fact confirm that the number of PERM denials has increased.  As DOL cites better staffing and higher standards for the reason of the increased denials, it is obvious that the increase in PERM denials is caused mainly by strict enforcement or the current standards.  We should expect to see more PERM denials for clerical and harmless errors and for failure to follow all of the PERM guidelines and regulations.

Also, as a result of DOL’s acknowledgment that it would increase the number of revocation and debarment proceedings against employers for failure to (adequately) respond to audit notices, it becomes critically important for employers who receive audit notices to prepare a good and timely response.