Survival Guide for Laid off Foreign Workers

 

Meta has just announced a layoff of 11,000 or 13% of their employees.   Elon Musk laid off 50% of twitter's workforce after buying the company.  Salesforce laid off 50% of its employees in the summer. And the list goes on. These are just some examples of the massive layoffs announced by U.S. companies, especially the big tech firms, in the past year. For foreign workers, getting the pink slip does not only mean loss of employment, but it could also mean loss of their immigration status and/or sponsorship for their green card.

Preparation is the Key

The prospects of an economic recession are high, given the U.S. Federal Reserve's determination to curb inflation by sharply increasing benchmark interest rates.  As a result, many companies are scaling back hiring and reducing the size of their workforce. Nobody is safe. It is very important that foreign workers are prepared in advance for a sudden loss of employment. Time is your best friend. For example, H-1B employees generally have up to 60 days of grace to stay in the U.S. or look for new employment before they'll lose their status due to termination of employment.  In fact, if you sense that layoffs are coming your way, you should start looking for a new job right now! The following are some additional issues that you should consider.

Preserving H-1B, F-1, and Other Nonimmigrant Status 

First and foremost, you should try to preserve your legal status in the U.S., as failure to maintain one's nonimmigrant status may result in denial of future applications for status change or extension. For F-1 students who are working based on OPT practical training work authorization, they have to watch out for the 90-day or 150-day allowance of unemployment.  Fortunately, volunteer work or even self-employment is allowed for the initial OPT period.  For STEM OPT employment, it must be paid and sponsored by an eVerified employer.  

As mentioned, foreign nationals holding E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN classifications are entitled to a one-time grace period of up to 60 consecutive days, or until the end of the status validity period, whichever is shorter.  That means if your H-1B I-94 expires on 09/30, and you lose your job on 08/31, you only have 30 days of grace period.  Companies usually do not hire new employees during the holiday season. Hence, it could be challenging for foreign workers to secure new employment towards the end of the year.  As to be discussed below, there are other options to preserve one's status.

Saving the Green Card Application

For some laid off employees, their employers may have already begun the green card application for them.  If so, they have more to consider.  Depending on how far the application process is, they may or may not be able to keep the application for permanent residency.  For example, if they have already submitted the I-485 adjustment application, it may be possible for a new employer to take over the application.  However, if their employer was still processing the PERM labor application, they would have to start the whole process again through another employer.  In some situations, laid off employees may be able to keep the priority date of the first case after the approval of their I-140 visa petition. Larger companies usually offer a severance package to laid off employees. Foreign workers should keep these issues in mind when they negotiate severance terms with their employer. It is generally a good idea to retain their own attorney to make sure that their interests are represented.

Other Options

As discussed, one should try her best to keep her lawful status in the U.S.  What if there isn't enough time to find a new job? There are other options one may consider. If the laid off worker has a spouse who has his own status such as H-1B or F-1, changing into a dependent status such as H-4 or F-2 is an option.  

One may also consider changing into another nonimmigrant status temporarily to avoid a lapse of her status. For example, an F-1 student may extend their student status by enrolling with a new academic program.  Each visa classification has its own requirements and pitfalls, one must consider carefully before taking actions. Otherwise, it could make things worse.  Finally, if there is nothing else that can be done to stay in the U.S. legally, a laid off foreign worker should timely depart the U.S. to avoid remaining in the country illegally. With a clean immigration record, a foreign worker can always apply for a new visa to return in the future.

Summary

Massive job cuts are underway. Foreign workers should get ready for any sudden termination or changes of their employment. Timing is critical. Advanced preparation and correct information regarding all available options can help them ride out the storm.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

PERM Labor Application Processing Time - Slow Advancement

 

 DOL posted the following PERM labor certification processing times as of  05/31/2023 -

	Priority Date	Average Number of Days to Process Applications
Analyst Reviews:	July 2022	283
Audit Review:	April 2022	443
Reconsideration Requests:	August 2022

Processing time of PERM labor application has getting longer in the past year.  If this trend continues, it will take close to one year to get a labor application certified, even without an audit.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Using Permanent Labor Certification To Counter Labor Shortage

Now may be the best time for U.S. employers to recruit foreign workers via the Permanent Foreign Labor Certification process, in the aftermath of the "Great Resignation" of American workers. 

As reported by the New York Times, since the outbreak of the pandemic, about 4.3 million workers, which represent 3 percent of the American workforce, have quitted or otherwise given up their jobs. There are currently 11 million job openings in the U.S.  And the trend is expected to continue in 2022.  Americans quit their jobs for various reasons, but the resulting labor shortage is real and widespread. Chipotles have become mad houses during weekends. The are long times in all sorts of retail establishments.  Demand for professional workers, such as business analysts, software developers, engineers, etc., is equally high. 

A logical alternative for employers is to hire foreign workers to fill their job openings. Obtaining a labor certification (aka PERM) is a prerequisite requirement before a U.S. employer can hire a foreign worker for a permanent full-time position in America.

PERM was promulgated by the DOL in March 2005 as a new rule to govern the filing and processing of labor applications for the permanent employment of foreign workers. This new rule completely revamped the previous certification process of labor applications. It is an online system with new features and specific regulatory requirements. Despite some technical glitches and regulatory issues, PERM has proven to be a better system in handling labor applications. 

Before a PERM application is certified for a job opportunity, the employer must establish, through a series of recruiting efforts, that it has not been able to find a ready, willing, able and available American worker to take the job.  In a tight job market, such a showing may be difficult as there are plenty of available workers.  However, the recent exodus of workers from the market means that qualified workers are actually hard to come by.

The Visa Bulletin controls how fast a foreign national can immigrate into the U.S. For many countries especially the Philippines and Mexico, the waiting time for family-based immigrant visas is extremely long.   In contrast, visa numbers are readily available for employment-based categories including EB-1, EB-2 (advanced degree holders) and EB-3 (professional and skilled workers).  Hence, it would be a lot faster for citizens of these countries to immigrate to the U.S. based on job offers by U.S. employers.

Labor certification is usually the first step to start an employment-based immigrant visa petition.  To the extent that the current labor job market is devoid of qualified workers, employers should take advantage of the PERM labor application process to petition for foreign workers to fill this void.   It is a win-win situation for U.S. employers, foreign workers, and the American economy.  The PERM labor certification process is powerful but also highly-regulated.  Interested employers and employees should consult with an experienced immigration attorney before filing a labor certification.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Delay of PERM Prevailing Wage Determination

Immigration practitioners may have noticed a gradual delay of the issuance of prevailing wage determinations (PWDs) by the Office of Foreign Labor Certification of the Labor Department.  The processing time has almost doubled in the past few years.  For many years, the average processing time for PWD used to be between 3 and 4 months.  However, the current PWD processing time has increased to about 6 months.  The delay means that advance planning is critical for employment-based immigration cases. 

Requirement of the Prevailing Wage Determination

To petition for a foreign worker for permanent employment in the US, an employer typically has to go through the PERM labor certification process.  PERM certification is proof that the employer is not able to find a qualified and available US worker to fill a particular job opening.  Submission of a prevailing wage request (Form ETA 9141) is an initial step in the PERM application process.  In the PWD, the Labor Department will determinate the marketing wage for the position based on factors such as the job location, duties and requirements.  The employer must offer at least the prevailing wage to any qualified applicant. 

Timing is Critical for Employment Cases

In employment-based green card cases, timing is really everything.  Frist, the PERM process is governed by very strict time restrictions, and any deviations will result in a denial.  Further, consider a typical applicant who was born in India and is working in the US on H-1B visa.  The cutoff dates for the EB-2 and EB-3 categories are about 10 years away. The sooner this applicant applies for PERM, the earlier he can secure a priority date (PD), and the earlier that he can get his green card approved.  Filing PERM early can also facilitate this applicant's H-1B extension under the AC-21 portability rules.  Significantly, the current delay with PWD will cascade down the entire application process for permanent residency.  

Planning Ahead

In light of the current delay of PWD, employers and applicants should plan ahead. Map out an application schedule as soon as possible.  As it does not cost anything to file a prevailing wage request, employers should file the requests early on if they anticipate sponsorship of foreign workers down the road.   It is also possible to start PERM recruiting before the PWD is issued. But be forewarned - there are risks involved in doing so and an employer should only do it under the advisement of an experienced practitioner. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

PERM Labor Certifications Delivered via Email Starting 3/25/2020

Starting 03/25/2020, through 06/30/2020, Office of Foreign Labor Certification (OFLC) will issue PERM labor certification documents, including the certified Form ETA-9089 and Final Determination letter, electronically to employers and their authorized attorneys or agents in response to the COVID-19 pandemic.

Original labor certification documents will be sent to attorneys and employers via UPS regular delivery only if the parties are not able to receive electronic certifications.  

As usual, upon email receipt of an electronic copy of the certified Form ETA-9089, it must be printed, and then signed and dated by all parties before it can be used to support the Form I-140 (immigrant visa petition) with USCIS: the foreign worker, attorney/preparer (if applicable), and the employer.  

According to DOL, USCIS may consider this printed Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL.

Impact of Government Shutdown on Immigration Filings

As we all know by now, negotiations broke down in Congress and the Federal government has been shutdown as of midnight Friday, January 19, 2018.  Luckily for some and maybe unluckily for others, the government did not completely shutdown.  The government was shutdown because there was no federal funding to finance the government operations and activities.  However, even during a shutdown, certain essential services will continue including social security payments, military services, air travel services, etc.

What about immigration services? 

Although most federal agencies will be closed, the Department of Homeland Security (DHS) is an exception as their services are considered essential.  For example, the Customs and Border Patrol (CBP) will continue its operations at the ports of entry.  The Immigrant and Custom Enforcement (ICE) will continue to enforce the immigration laws. 

Although the U.S. Citizenship and Immigration Services is part of the DHS, it does not get its funding from Congress; it is financed by the application fees paid by the public.  Hence, the shutdown does not affect its operations.  It will continue to accept immigration petitions from the public with some exceptions, including the Special Immigrant Religious Workers program, EB-5 Regional Center Program, E-Verify and the Conrad 30 J-1 doctors program. 

However, the Department of Labor (DOL)'s operations have been shut down.  It means that the Foreign Labor Certification Data Center (OFLC) will no longer be able to certify the Labor Condition Application (LCA) for H-1B petitions, issue Prevailing Wage determination for PERM labor application, or adjudicate any PERM ETA9089 applications.  Hence, these types of applications will not be able to proceed for the time being.  Applicants are advised to continue submitting these applications.  Based on the experience of the last shutdown, the DOL will likely provide some retroactive relief regarding timeliness and deadlines.  

Regarding overseas visa and passport services, the Department of State (DOS) has stated that their operations will continue for the time being.  Hence, overseas applications should not be affected.

PERM Labor Certification Processing Time

DOL posted the following PERM labor certification processing times as of 10/31/2017-

Analyst Reviews:	July 2017 (About 4 months)
Audit Review:	March 2017 (About 8 months)
Reconsideration Requests:	October 2017 (2 month)

(Note: the dates represent initial filing dates)

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PERM Labor Application Processing Time

DOL posted the following PERM labor certification processing times as of 12/3/2016 -

Analyst Reviews:	September 2016 (About 4 months)
Audit Review:	May 2016 (About 8 months)
Reconsideration Requests:	November 2016 (2 month)

(Note: the dates represent initial filing dates)

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Relocation Requirement Not A Basis For Labor Cert Denial

Since the dot.com era, the IT consulting business has firmly found its place in the corporate world. Rather than hiring permanent employees, companies prefer to hire "contractors" or "consultants" to perform certain IT functions for both cost control and efficiency.  The nature of the IT consulting business often requires the consultants to work at different locations for various periods of time. Such requirement introduced another level of complication in the permanent foreign labor application filed on behalf of these IT consultants. A certified labor application is normally required before an employer may petition for a foreign worker to work permanently in the United States.

Recently, such a labor application was denied by the Certifying Officer at DOL because the employer failed to list the relocation requirement in the recruiting documents and also on the PERM labor application (ETA Form 9089) for a position with a primary work site "and various unanticipated locations throughout the U.S."

The Appeals Board (BALCA) reversed the denial and granted certification on appeal.  In this case (Matter of Infosys, 2016-PER-00074), the employer included a requirement for travel in the labor application, and argued that there is no major distinction between travel and relocation.  The employer relied on a 1994 memo of DOL known as the "Farmer Memo" because it was issued by Barbara Ann Farmer, Administrator for Regional Management at the time.

The Appeals Board agreed with the employer that it was sufficient to mention about travel in the application because relocation can be inferred from the travel requirement and also the job description.  By virtue of the fact that the job requires the employee to work at various unanticipated locations throughout the U.S.,  potential job applicants should expect that relocation to other parts of the country is required in order to perform the job duties.  The Certifying Officer also relied on some previous cases involving the same issue which were denied by the Board. These cases, however, are distinguishable from the instant case, according to the Board.  These cases, for example, Patel Consultants Corp., 2011-PER-535 (Feb. 27, 2012), were denied because of direct inconsistencies between the language in the advertising and the PERM labor application.

The Board also granted certification based on the principles of fundamental fairness.  The Farmer memo allowed employers to file the labor application at the local office where the employer's headquarter office is located in situations where the employee is required to work at various locations in the U.S.  The Farmer does not distinguish between travel and relocation.  There has been no other guidance from the Labor Department despite repeated requests from the organized immigration bar on this particular issue.

Further, the petitioner in the case (and also many other employers) has used the same approach and language in many other labor applications which have been approved by DOL.  The Board found the sudden change in the adjudication standard without prior notice to the employers and the public fundamentally unfair.

Travel and GPA Requirements in Employer Website Posting Do Not Violate Labor Cert Regulation

The Certifying Officer (CO) denied certification of a labor application filed by an employer who was seeking to hire an "Electrical Design Engineer" after an audit.  In Matter of Stryker Medical, 2012-PER-01776 (Mar. 11, 2016), the employer's website advertisement for the position contained a travel requirement of 10% and stated a GPA of 3.0 or higher was preferred.  Such requirements are not listed in the ETA Form 9089 labor application.  Citing 20 C.F.R. § 656.17(f)(7), the CO determined that the Employer’s website advertisement included "more stringent requirements" than those listed in the labor application form.  On appeal, BALCA reversed the denial, citing Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc),  which held that the language of § 656.17(f) only applies to advertisements in newspapers or professional journals.

This case is one of a series of similar BALCA holdings on this very issue.  See, e.g., Matter of Pinnacle Technical Services, and Matter of Bahwan Cybertek Inc.  Before these decisions, many labor applications were denied on some minor technical grounds pursuant to § 656.17(f). These rulings will make PERM labor application recruiting a step closer to real world recruiting.   

BALCA Grants Labor Certification Despite $1.00/Year Listed In Job Order

In a recent decision, BALCA overturns the CO's denial of a PERM labor application after finding, once again, that the State Job Order (JO) is not subject to the general advertising requirements under 20 C.F.R. §656.17(f). Matter of Bahwan Cybertek Inc., 2012-PER-01147 (2/18/16)

20 C.F.R. § 656.17(f) provides that advertisements placed in newspapers of general circulation or in professional journals must not contain wages or terms and conditions of employment that are less favorable than those offered to the foreign worker.

In Bahwan Cybertek Inc., the employer's policy is not to advertise the salaries in job postings. However, due to technical requirements of the State JO's website, the employer entered $1.00/Year as the salary for its job opening for a Project Manger.  However, the employer also added "Competitive Salary. Will be discussed with the candidate" underneath.  Nevertheless, CO denied certification based on 20 C.F.R. § 656.17(f).  

BALCA reversed, noting that the regulation, by its text, does not apply to job orders.  In fact, in an earlier case decided on January 1, 2016, BALCA already held that 20 CFR §656.17(f) is not applicable to SWA Job Orders. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

BALCA also opined that U.S. workers were not discouraged from applying for the position, as argued by the CO.  To the extent that this is clearly a senior level professional position, reasonable job seekers would not believe that the salary is only $1.00 per year. 

It should be noted that in another en banc decision by BALCA, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), the Board already held that the additional steps of recruitment for professional jobs need not have to comply with the content requirements under 20 C.F.R. § 656.17(f). 

This series of Board cases make it clear that, for PERM recruiting purposes, only the mandatory print advertisements and the Notice of Filing must comply with the content or "specific job opportunity" requirements pursuant to 20 C.F.R. § 656.17(f).  In Job Orders and other additional recruiting steps, employers only need to present evidence that the "occupation" involved has been announced.  This legal distinction is critical.   

Labor Cert Board Exhibits Reason Again in Recent Decisions

In the Matter of JOHNS HOPKINS HEALTH SYSTEM CORPORATION, 2012-PER-01751 (Feb. 2, 2016), the Board ordered reissuance of Labor Certification with new validity period after the Employer established that it had never received the initial certification. In doing so, the Board excused the late filing of Employer's motion in light of the egregious factor involved, i.e., CO's failure to issue Certification per regulation.

In the Matter of KIM & BAE, P.C., 2012-PER-01067 (Feb. 2, 2016), the Board granted Employer's Motion to Reconsider so that the CO may consider the resumes submitted for the permanent position. Due to a formatting error in the CO's Audit Notice, the Employer failed to submit the resumes in it's audit response but included them in the request for reconsideration.  The Board found the formatting error caused the Employer to miss the directive regarding submission of resumes. 

For more recent decisions by the Labor Cert Appeal Board, review these other decisions

PERM Labor Application Processing Time

DOL posted the following PERM labor certification processing times as of - January 13, 2016

Analyst Reviews:	June 2015 (About 7-8 months)
Audit Review:	November 2014 (About 15 months)
Reconsideration Requests:	August 2015  (5 months)
Government Error Reconsideration:	Current

(Note: the dates represent initial filing dates)

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Appeal Board Denies Labor Application for Director of Closely HeldCorporation

Before a U.S. employer may petition a foreign worker for a permanent position, it must obtain a labor certification from the Labor Department to show that there are no able, willing, and available U.S. employees to take the job. During the labor certification process, the employer has to prove that there exists a bona fide job opportunity open to U.S. workers.

If the foreign worker happens to be the director of the company actively managing the operations, owns 50% of the company, and is also married to other co-owner, can there still be a bona fide job opportunity?  The answer is negative, according to the Board of Alien Labor Certification Appeals (BALCA) in a recent decision.

On 25 September 2015, BALCA issued a decision affirming the denial of certification in a case with the these facts.  In the Matter of Step by Step Day Care LLC, the employer filed a permanent foreign labor application  for the position of “Daycare Center Director”.  The employer is a small closely-held corporation, in which the foreign worker has an ownership interest and is also the wife of the other co-owner.

The Certifying Officer (CO) did not believe that there was a genuine recruitment process given the fact that the beneficiary employee controlled the company and the hiring process as a co-owner and also director of the company.  The employer responded by arguing that, although the foreign worker as the director was usually in charge of the hiring process, she did not participate in this particular recruiting process. Instead, she delegated the responsibility to a subordinate employee.

However, BALCA was not convinced that there was a bona fide job opportunity.  To the extent that the subordinate employee was under the supervision of the foreign employee and got paid by her, the foreign employee was "in a position to control or influence hiring decisions" in the recruiting process. Consequently, any decisions made by the subordinate employee could not have been objective.

In its analysis, BALCA cited to 20 C.F.R. § 657.17(c)(8), which requires the employer to attest that "[t]he job opportunity has been and is clearly open to any U.S. worker" and 20 C.F.R. § 656.17(l), which provides, "[i]f the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers...."

Here, the Board, after considering the totality of the circumstances, held that Step by Step LLC had not met its burden of overcoming the presumption that the foreign worker had influence and control over the job opportunity.  Nor did the employer demonstrate the existence of a job opportunity that was available to all U.S. workers. As such, BALCA affirmed the CO's denial of labor certification.

In general, where the foreign worker has an ownership interest in or a familial relationship with the owners or management of the petitioning company, it would be difficult to prove a bona fide job opportunity unless there exists an independent management board or third party which can make hiring decisions.  

PERM Labor Application Processing Time

DOL posted the following PERM labor certification processing times as of 08/31/2015-

Analyst Reviews:	February 2015 (About 7 months)
Audit Review:	June 2014  (About 15 months)
Reconsideration Requests:	June 2015  (3 months)
Government Error Reconsideration:	Current

(Note: the dates represent initial filing dates)

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PERM Processing time as of 05/04/2015

DOL posted the following PERM labor certification processing times as of 05/04/2015-

Analyst Reviews:	November 2014   (About 5-6 months)
Audit Review:	November 2013  (About 19 months)
Reconsideration Requests:	May 2015  (almost current)
Government Error Reconsideration:	Current

(Note: the dates represent initial filing dates)

Housing benefits must be announced in labor application ads and notices

If an employer provides housing benefits such as free housing to employees in a job opportunity, such benefits must be announced in the job notices and advertisements in order to fulfill the regulatory requirements for a foreign worker's permanent employment labor certification, according to a recent decision by the Board of Alien Labor Certification Appeals (BALCA).(Matter of Needham-Betz Thoroughbreds, Inc., 12/31/14)  Labor certification is a prerequisite requirement for most employment-based green card applications.

Labor application denied because ads did not disclose free housing

Needham-Betz involves a labor application filed by an employer for the position of a "farm manager." The job site is a horse farm.  The employer offers its employees to live, rent-free, on-site at the farm as an option.  The foreign worker here did take advantage of this housing benefit.  In denying the case, the Certifying Officer reasoned that free housing is a major convenience and cost-saving incentive for a worker to take a job.  If this benefit was included in the job notices and advertisements, some potential U.S. workers who were not otherwise interested in the position might have applied.  According to the CO, the employer offered terms and conditions of employment that were less favorable than those offered to the alien" in violation of 20 C.F.R. § 656.17(f)(7). 

Emma Willard School - same benefit, different outcome

The employer appealed the denial to BALCA the appeal board, making two arguments.  First, the employer relies on another decision of BALCA - Emma Willard School, 2010-PER-01101 (Sept. 28, 2011).  Similar to the instant case, Emma's employer is a boarding school which offers free housing to most employees and teachers.  A BALCA panel of three judges in that case held that the employer’s failure to indicate the availability of employer-subsidized housing in its advertisements did not violate section 656.17(f)(7).  However, in the instant case, the Needham-Betz board (a panel of three different judges) did not find Emma controlling because Emma was not decided by the whole board (en banc).

What about the ETA's FAQs?

The employer also pointed out that one of the FAQs issued by Labor Department's Employment and Training Administration had indicated that "not every duty, requirement and condition of employment needs to be included in advertisements."  Hence, the employer argued that their failure to include the housing benefit should not be used as the reason for denial.  BALCA, again, did not accept this argument.  Although not all job benefits need to be advertised, the Board distinguishes free housing from other benefits: "Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days."  The Board agreed with the CO that the benefit of free housing was so substantial that it should have been announced so that potential U.S. job seekers could have taken that into consideration. 

U.S. workers and foreigners must be treated equally

This decision is another example of how the Board interpreted section 656.17(f)(7). This section prohibits employers for offering terms and conditions of employment less favorable than those offered to the foreign national.  The idea is to treat U.S. workers and foreign workers equally and fairly.   Employers are not required to list all the job requirements, duties, conditions in the job postings but only those that  are unusual and would tend to influence job seekers' decisions.  

Better safe than sorry

However, it is sometimes difficult to decide what must be included.  For example, the Emma Board panel approved certification although the benefit of free housing was not posted, whereas in the instance case, a different Board panel in Needham-Betz held the other way.  It is possible that new decisions will come down on this vary issue.  But as prudent advisers to our clients, we always prepare PERM labor application defensively, and advise clients to include unusual requirements (on-call, travel, relocation, etc.) and benefits (housing, telecommuting, home office, etc.) in job postings and advertisements.  At the end,  when a PERM labor application is denied, regardless of whether we are right or wrong on the law, it would still cause substantial delay in the green card application process.  

PERM Labor Application Processing Time

U.S. Labor Department posted the following PERM processing times as of 10/06/2014 -

Analyst Reviews:	May 2014  (About 5 months)
Audit Review:	April 2013 (About 18 months)
Reconsideration Requests:	October 2014 (almost current)
Government Error Reconsideration:	Current

(Note: the dates denote initial filing dates)

PERM Labor Application Processing Time

U.S. Labor Department posted the following PERM processing times as of 09/08/2014 -

Analyst Reviews: April 2014  (About 5 months - an improvement from the beginning of the year)
Audit Review: March 2013 (About 18 months turn around - audits are getting slower.)
Reconsideration Requests: September 2014 (almost current)
Gov't Error Re-considerations: Current

(Note: the dates denote initial filing dates)

Labor application: Newspaper requirements not applicable to additional recruiting steps

The requirements for newspaper advertising do not apply to the additional recruiting steps for professional occupations under the labor application regulation, according to a recent decision of the labor certification appeal board.  Matter of Symantec Corporation, 2011-PER-01856 (July 30, 2014).


A foreign labor certification is usually required before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  The regulation requires that an employer must advertise the job openings in Sunday newspaper of general circulation for two times. In addition, employer must also fulfill three (3) additional recruiting steps for professional positions.  For example, an employer can post the job opening on an online job search website as an additional step.

In the case at issue, the employer, Symantec, filed a labor application on behalf of a Financial Programmer Analyst.  As one of the additional recruiting steps, they posted the job opening on a job search website. The labor application submitted does not contain any travel requirements.  However, in the job search website posting, it states that the employee may be required to work on projects "at various unanticipated sites throughout the United States."  The Labor Department Certifying Officer (CO) denied the labor application on the basis that the travel requirement posted is an additional requirement not included in the labor application under the regulation.

The employer on motion and appeal explained that the online job posting is for multiple openings, some of which require travel to other places, but the position being offered does not have any travel requirements. Further, the employer argued that the regulation cited by the CO only applied to newspaper advertisements but not in the other additional recruiting steps.  A panel of three appeal board judges agreed with the employer and reversed the denial.  However, the CO petitioned for a rehearing of the case by the whole Board of Alien Labor Certification Appeals (BALCA).

BALCA decided, en banc, that the employer is correct in that the regulation cited by the CO for denying the labor application does not apply to the additional recruiting steps.  The plain language of the regulation states that the additional steps only have to advertise the job opening; it does not impose other requirements. Here the employer did advertise the job opening as required, and the labor application should not be denied based on unwritten requirements in the regulation.  Symantec marks a clear change in direction in the interpretation of the regulation by the BALCA from cases such as East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc).  It also provides some much-needed guidance regarding the recruiting process of PERM labor application.