DENIAL OF PERM APPLICATIONS BY DEPARTMENT OF LABOR CAUSES CONCERNS FOR EMPLOYERS AND IMMIGRANTS

INTRODUCTION

On March 15th, 2023, Forbes published an article by Stuart Anderson, discussing the recent actions of the Labor Department in relation to immigration policy. The Department of Labor has recently denied hundreds of applications for the permanent labor certification (PERM) program, causing chaos for employers seeking to sponsor employment-based immigrants. This move has reportedly been made based on how job titles are listed on a government form, which is unrelated to U.S. worker protections. As a result, companies, universities, and attorneys have expressed concern that green card applications could be set back years and some employees could be forced to leave the country, particularly at a time when America is competing with other nations to retain talent.

HERE IS WHAT YOU NEED TO KNOW ABOUT THE SITUATION:

What is the PERM Program?

The PERM program is a process that employment-based immigrants must go through to obtain permanent residence in the US, also known as a green card. Obtaining “labor certification” from the Department of Labor is a critical step in this process. To meet this requirement, DOL has required employers to test the labor market by placing advertisements before filling out Form 9089. The 15-page application for permanent employment certification includes sections that identify the employer, details on the prevailing wage, and job opportunity information.

What is the Problem?

According to reports, a wave of denied PERM applications has hit law firms and employers in recent weeks, indicating that the Department of Labor has changed the way it adjudicates PERM applications. Attorneys say that the denials became more noticeable in the fall of 2022 and increased more recently, with DOL denying more than twice the percentage of PERM applications in the first quarter of FY 2023 compared to the first quarter of FY 2022. This change in adjudication is connected to Question H.10-B of Form 9089, which asks employers to “identify the job title of the acceptable alternate occupation” required for the experience needed to qualify for the PERM role. The denials are reportedly due to the way employers are answering this question, which is unclear since the instructions to the form do not provide much detail on how to answer this question.

What is the Practical Impact?

The denials have created a significant impact on employers, green card applicants, and the US economy. With thousands of PERM applications pending, employers fear that green card applications could be set back years, which may result in some employees being forced to leave the country. This comes at a time when America is competing with other nations to retain talent, and the denial of these applications could result in the loss of valuable workers.

What is the Way Forward?

A new response from DOL could limit the damage. Employers and attorneys are calling on DOL to issue guidance on completing the form and to provide clarity on the new adjudication process. This would allow employers to fill out the form correctly, avoid denials, and protect the interests of both the US economy and employment-based immigrants.

CONCLUSION

The recent denials of PERM applications by the Department of Labor have caused chaos for employers seeking to sponsor employment-based immigrants, particularly at a time when America is competing with other nations to retain talent. It is crucial for DOL to issue guidance on completing the form and provide clarity on the new adjudication process to avoid further setbacks to green card applications and protect the interests of both employers and employment-based immigrants.