April 5, 2023

The Department of Labor (DOL) has placed employers in a difficult situation. This difficult situation is because the agency has denied many filed applications for sponsored employment-based immigrants. According to employers and attorneys, the DOL rejected many of their applications for the permanent labor certification (PERM) program because of how the job titles appear on the government form.

The attorneys also claimed that the denials are not part of the protections for U.S. workers. As a result, many employers worry about extended delays for green card applications due to the increase in pending PERM applications. In addition to the potentially years-long wait, they have expressed concern about the situation forcing some workers to leave the country.

Generally speaking, most employment-based immigrants seeking a green card must first obtain a labor certification from the DOL. The DOL requires employers to test the labor market by placing advertisements to comply with the statutory requirement. Employers must do this before completing an Application for Permanent Employment Certification (Form 9089).

The application to obtain permanent employment certification has sections to verify the employer’s identity and the prevailing wage. It also requests information on the job opportunity. For example, the application requests specifics about whether the job requires job-related experience or if experience in other occupations counts.

Unfortunately, the DOL has never issued guidance on how to complete this form. As a result, companies have completed the paperwork in various ways without problem until now. Allegedly, the rejections primarily stem from how employers have answered Question H.10-B of Form 9089. This question asks employers to state the job title of an alternate occupation with acceptable experience to qualify for the PERM role.

The instructions provided for the form do not explain how employers should answer this question. Because the vagueness has never proved problematic before, the sudden denials have surprised all concerned parties. Additionally, employers do not understand the DOL’s abrupt decision to reject the paperwork as martially incomplete over this question.

Denied PERM applications often cause delays in the green card process. Unfortunately, these delays could take years and may result in PERM beneficiaries losing their ability to remain in the United States. As a result, employers could find it more challenging to fill positions, especially during the current labor shortages.

Fortunately, the DOL may have solutions for this problem. The DOL’s Office of Foreign Labor Certification (OFLC) claimed a willingness to review cases where the PERM denial occurred because of Question H.10-B. Furthermore, the OLFC claimed they would review applications if the employer filed a Request for Reconsideration due to a Question H.10-B denial. 

In these cases, the OFLC explained that the agency would address them separately and certify the applications when appropriate. As such, the agency intends to address these cases immediately. However, the OFLC warned that it could take several weeks to finish processing them due to the volume of cases.

Many hope that the OFLC’s solution will solve this problem. Employers also hope that DOL will ensure that the issue does not continue. Furthermore, employers who have successfully hired foreign nationals must remember to complete the employment eligibility verification (Form I-9). Unfortunately, this process often proves challenging, rivaling the struggles with the DOL rejecting many PERM applications. 

The easiest way to complete the I-9 process without making potentially costly mistakes is to invest in an electronic I-9 management system. This system can guide employers through the process, store the forms, and issue timely alerts.

Ensure compliance today by switching to an electronic I-9 management tool with I-9Compliance.

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