9/11/2008

According to OFLC (Office of Foreign Labor Certification), they were processing the audit cases of priority date March 2007 PERM applications, and the processing queue of the audit cases were determined not by the dates of the audit notification issuance but by the priority dates, the dates when the PERM applications were filed. 

The report did not indicate that they made distinctions in audit processing queue by the different causes of the audit decisions. Accordingly, once the audit notifications are issued for whatever reasons, the cases are likely to go to the end of the pending audit queue. 

Such processing backlog should scare the employers in handling new applications. When there were practically no audits, some employers had taken a very "liberal" approach in terms of the qualification requirements for the positions. Even though the Job Zone was restricted to a bachelor's degree, the employers filed their cases in EB-2 requiring a master's degree or bachelor's degree plus five years of experience with some success, because the risk was minimal at the time considering the fact that the current standard is "normal" which is not clearly defined and the DOL has been adjudicating the Job Zone issues in a more flexible manner. 

Besides, when a case was audited, the OFLC had taken to complete the audit cases. The current audit backlog and processing time delays have changed the landscape for the PERM strategies from the liberal approach to the conservative approach owing to the unusually high risk involved when a case is audited for whatever reasons, forcing the employers to wait and wait for over a year or longer to get the decisions. 

The risk is likely to increase beginning from January 1, 2009 when the DOL is scheduled to implement a new PERM form which replaces the standard of "normal" by the more clearly fixed standard of "Job Zone" and those PERM applications that exceeded the Job Zones will face increased risk of audit on the issue of business necessity. 

There may be some employers and their representatives who may continue to practice, indiscriminately and without a proper consideration of the changing environment, the way they had been handling PERM cases in the past at the cost of their alien employees/clients' expenses and suffering from the protracted legal process under the environment of continuing huge backlog in audit cases.