The US Department of Labor (USDOL) has published its statistics for fiscal year 2018, which ended on September 30, 2018. The USDOL certified the majority of the 119,776 labor certification (PERM) applications processed in the last fiscal year. Of the 24,052 applications still in process with the USDOL as of the end of the fiscal year, 64% were still in analyst review and 25% were in audit review. The majority of PERM applications were for: computer and mathematics occupations; positions in California and Texas; positions in the Professional, Scientific and Technical Services or manufacturing industries; and positions requiring at least a bachelor’s degree or higher. The high rate of certification reflects the low national unemployment rate and tight labor market that employers are facing. However, American Immigration Lawyers Association members are also reporting an increase in extensive requests for evidence for immigrant worker petitions (I-140) from the US Citizenship & Immigration Services (USCIS), following PERM certification. At times, these include requests for PERM recruitment documents. The process for employment-based permanent residence continues to be long and arduous both for nonimmigrants and for their employers.
The U.S. Department of Labor’s Board of Alien Labor Certification Appeals (“BALCA”) determines employers’ appeals of prevailing wage determinations and labor certification (“PERM”) denials during sponsorship of foreign nationals for employment-based green cards. In a recently decided case, BALCA upheld a PERM denial because the employer failed to interview a potentially qualified U.S. worker during the mandatory labor market test for the sponsored position. BALCA said that employers have a duty to investigate further when the resume raises a “reasonable prospect” that a candidate is qualified; in other words, when a candidate meets overall education and experience requirements (Matter of CEO Ally, Inc., 5/12/16). The decision serves as a warning to U.S. employers that they protect the substantial human and financial resources they have invested in green card sponsorship by ensuring that they thoroughly screen all US workers – beyond mere resume review, when warranted – in order to provide concrete detail to support rejection of any U.S. workers during a PERM labor market test.