The Department of Labor (DOL) plays a crucial role in the process that most employment-based immigrants undergo to obtain permanent residence or a green card. This process requires DOL to certify the labor market by placing advertisements before filling out Form 9089, the application for permanent employment certification.
However, in recent weeks, a wave of denied perm applications has hit law firms and employers, indicating that DOL has changed the way it adjudicates perm applications without public notice.
The Problem with the Perm Program:
The denial of hundreds of applications for the permanent labor certification (perm) program by DOL has created chaos for employers. DOL has denied perm applications based on how job titles are listed on a government form, section H of the 15-page application for permanent employment certification.
The denials are unrelated to US worker protections according to attorneys. Thousands of perm applications are pending, and employers say green card applications could be set back years, and some employees could be forced to leave the country.
The Increasing Denial Rate:
Attorneys say the denials became more noticeable in the fall of 2022 and increased more recently. A national foundation for American policy analysis of DOL disclosure data finds that in the first quarter of Phi 2023 (October to December 2022), DOL denied more than twice the percentage of perm applications as in the first quarter of Phi 2022 (October to December 2021).
The 6.8% denial rate for perm applications in the first quarter of Phi 2023 is higher than the denial rate of 4.5% in 2021 and 4.6% in Phi 2022. The denial rate for perm applications has increased for four consecutive quarters, going from 3.2% in the first quarter of Phi 2022 to 6.8% in the first quarter of Phi 2023.
The Impact of Denial:
If a perm application is denied, it could delay the Green Card process for a year and a half or more, and it might prevent someone in L1 status from being approved before their maximum period of stay is exhausted.
The practical impact of these denials is significant, and they will likely further slow DOL processing times if they continue. Firm processing times are currently more than eight months, and tens of thousands of perm applications await DOL adjudication.
The American Immigration Lawyers Association (AILA) DOL liaison committee has discussed the issue with DOL. Employers and attorneys hope for a solution to the chaos, confusion, and lack of predictability that DOL has created.
Unless corrected, there will be a massive waste of employer and government resources as employers file a request for reconsideration and ultimately an appeal to the Board of Alien Labor Certification Appeals.
The denial of hundreds of applications for the perm program by DOL based on how job titles are listed on a government form has created chaos for employers.
The increasing denial rate of perm applications has significant practical effects, delaying the Green Card process and slowing DOL processing times. Employers and attorneys hope for a solution to this chaos and lack of predictability created by DOL.