12/17/2008

The DOL has been experiencing backlogs in PERM application processing and there is no report since the end of May 2008 that any PERM cases which were filed in June or thereafter have been adjudicated. The electronic filing and adjudication program of PERM one time led the agency to resolve the tremendously clogged permanent labor certification program very successfully by adjudicating the electronically filed new application as short as in two or three days in some cases. Now, it has turned into a history. Currently it takes more than six months for new applications. 

The cases in the audit tracks are even clogged since August 2007. The DOL leaders remain "mute" on the causes of the present problem, but it is obvious that the current problem stemmed from its bold move of auditing all the cases of the nation's largest immigration law firm which led the agency in lawsuit tangle and its aftermath as well as the agency's decision to scrutinize sagging job markets before adjudicating any pending applications. 

The lawsuit settlement had released some cases in the audit track into the queue of non-audit regular PERM application track which are speculated to be not a small number and which had earlier priority dates. Since the agency is processing cases in the order of the priority date, obviously these cases must have affected later priority date cases. There is some clue that most of these cases may all be adjudicated in the very near future. Accordingly, we anticipate that the processing times of PERM cases may not take as long as what it takes now which is six months. 

The current backlog presents two problems. One and the foremost problem involves those alien beneficiaries who are not eligible for their post 6-year limit H-1B extension under AC 21 Section 104(c) in the three-year increment and not eligible for the one-year extension under the different AC 21 rule because the applications were filed less than 365 days. Since the DOL is not extending its "expedite" policy to such situation, they are and will be facing a serious problem in remaining in H-1B status pending adjudication of the labor certification application. 

The second problem appears to be more serious in that once PERM applications are denied after nine(9) months (3 months for recruitment plus 6 months for PERM processing backlog), restarting labor certification application will cause a tremendous long journey for the alien workers along with the accompanying host of problems for maintaining nonimmigrant status. 

Before PERM program came into scene, the labor certification program took a two-tier system (state-federal) and practically the decision was made at the level of the State agencies in a fairly short period of time in most states. Since the uncertifiable issues were sifted out and resolved at the State level, denial of the labor certification applications did not bring such a devastating consequence as the aliens are facing under the current backlogged PERM program which takes a single tier system.