DOL User Fees for the PERM Process – Say it ain’t so!

Since 2005 most Employment-Based Immigration to obtain Lawful Permanent Residency has been predicated on the filing of the PERM Application for Alien Labor Certification. Nankin & Verma PLLC has successfully filed countless PERM Applications for our corporate clients, and has educated them on the various onerous requirements necessary to comply with the regulations.

Currently, businesses which file PERM Applications on behalf of foreign nationals, must engage in a lengthy and arduous exercise to ensure that the jobs of U.S. workers (U.S. Citizens and Lawful Permanent Residents) are protected, and will not be adversely impacted by the permanent hiring of a foreign national. While such protections are absolutely necessary to thwart companies that may wish to secure “cheap labor,” the reality is that the methods by which the DOL believes it is protecting the jobs of U.S. workers are out of touch with reality. For instance, when sponsoring a foreign national for a professional occupation, the company must obtain a prevailing wage, post the opening with a State Workforce Agency for 30 days, place two (2) Sunday classified ads, and engage in three (3) other forms of recruitment as mandated by the DOL regulations. Very few, if any, real-world enterprises would go through such hoops to find employees, regardless of their citizenship, but businesses in the United States certainly do so in order to comply with the PERM regulations.

This method of recruitment is a very expensive, inflexible, and lengthy exercise, but one which must be undertaken. The company bears sole responsibility for covering the costs associated with both the recruitment efforts, which can run into thousands of dollars, as well as the legal fees associated with the preparation and filing of the PERM Application. There is no method by which to correct technical errors, and the slightest typographical error can result in the denial of a PERM Application, and the waste of months of work and thousands of dollars in expenses.

There has never been a time that the Department of Labor (DOL), which has the authority to review and certify PERM Applications, has charged for its administrative processing. All that is about to change. During the course of this summer, the DOL has notified interested parties (the immigration community and companies which utilize the PERM process), twice, that it intends to issue a proposed rule which will dramatically alter the PERM process and related requirements.

Some of the changes proposed include: (1) charging a Premium Processing-like fee for the filing of a PERM Application; (2) providing more flexibility to companies with respect to the types of recruitment activities that will be accepted by the DOL; and (3) providing a method by which technical errors may be corrected and allow a case to move forward without denial.

Nankin & Verma PLLC applauds the potential to have more choices in the recruitment activities companies may partake in, and supports the ability to make edits to PERM Applications when needed. However, we believe that the charging of fees for the PERM process unnecessarily increases the costs for employers, and has the potential to impact PERM case processing times negatively. The DOL explains that with a 77% increase in PERM filings over the past 5 years, it is necessary to charge a fee in order to hire and train more adjudicators and shorten processing times.

The last time a government agency explained that a fee to increase production and decrease processing times would benefit applicants, it was the USCIS discussing the optional $1225.00 Premium Processing fee. While the payment of that fee does indeed provide a decision within 15 days, it has been our experience that the processing times for cases in which Premium Processing was not chosen, has only increased exponentially.