The Department of Labor has created chaos for employers by denying applications needed to sponsor employment-based immigrants. Companies, universities and attorneys say DOL has denied hundreds of applications for the permanent labor certification (PERM) program based on how job titles are listed on a government form. The denials are unrelated to U.S. worker protections, according to attorneys. With thousands of PERM applications pending, employers say green card applications could be set back years, and some employees could be forced to leave the country at a time when America is competing with other nations to retain talent. A new response from DOL could limit the damage.
How PERM Works
Obtaining “labor certification” from the Department of Labor is a crucial step in the process most employment-based immigrants undergo to get permanent residence (a green card). To meet the statutory 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, in section H, “Job Opportunity Information.” The questions in section H include “Is experience in the job offered required for the job?” and “Is experience in an alternate occupation acceptable?”
DOL has never issued guidance on completing the form, according to Lynden Melmed, a partner at Berry Appleman & Leiden. Absent guidance, companies have filled out the form in many ways and government officials approved applications without ever indicating that they had a problem with how companies were completing the forms. Melmed points out that “DOL’s own data shows that the government approved thousands of identical applications going back years and that approval trends were consistent across a wide range of companies and across the legal industry.”
A wave of denied PERM applications has hit law firms and employers in recent weeks, indicating that DOL has, without public notice, changed the way it adjudicates PERM applications. 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 in the first quarter of FY 2023 (October to December 2022), DOL denied more than twice the percentage of PERM applications as in the first quarter of FY 2022 (October to December 2021), 6.8% vs. 3.2%. DOL denied 1,670 PERM applications in the first quarter of FY 2023 compared to 866 in the first quarter of FY 2022. The data refute the idea that DOL has always adjudicated PERM applications the same way and that nothing has changed.
The 6.8% denial rate for PERM applications in the first quarter of FY 2023 is higher than the denial rate of 4% in FY 2021 and 4.6% in FY 2022. In the last quarter of the Trump administration, the first quarter of FY 2021, the denial rate for PERM applications was 7.2%, but it dropped to 1.9% in the third quarter of FY 2021 during the Biden administration. More importantly, the denial rate for PERM applications has increased for four consecutive quarters, going from 3.2% in the first quarter of FY 2022 to 4.3% (2nd quarter FY 2022), 5% (3rd quarter FY 2022), 6.5% (4th quarter FY 2022) and 6.8% (1st quarter FY 2023).
The denials are 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 instructions to the form don’t provide much detail on how this should be answered, and in the absence of any detail for years, employers have taken a variety of approaches on how to provide an answer,” said Kevin Miner, a partner at Fragomen.
According to Miner, the denials came without warnings, and it is unclear why DOL believes that the way employers are answering Question H.10-B means the form is materially incomplete. “Some employers list job titles or occupations such as ‘a systems analyst or a software developer,’ some answer more broadly such as ‘software engineering or similar occupation involving coding in C++,’ and some are even broader, pointing to the job requirements without referencing any specific job title or occupation. For the nearly 20 years that the PERM program has existed, all these approaches have been fine, and there were never denials from DOL relating to how this question on the form was being answered.”
Melmed points out an irony of the DOL denials: the “broader” way of filling out the job requirements helps U.S. workers because it increases the chances that they would qualify for the position.
The Practical Impact
If a PERM application is denied, it could delay the green card process for a year and a half or more. That could affect aging-out benefits for children, notes Melmed. It might prevent someone in L-1 status from being approved before their maximum period of stay is exhausted.
The practical impact of these denials is significant, said Miner, and they will likely further slow DOL processing times if they continue. PERM processing times are currently more than 8 months, and tens of thousands of PERM applications await DOL adjudication. Unless corrected, he foresees 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.
“There will also likely be many cases where the denial of the PERM application will cause the PERM beneficiary to no longer be able to remain in the United States, exacerbating the problem employers already have filling key positions at a time of historically low unemployment,” said Miner.
In the eyes of employers and attorneys, DOL has created chaos, confusion and a lack of predictability. However, there is hope for a solution.
The American Immigration Lawyers Association’s (AILA) DOL Liaison Committee has discussed the issue with DOL’s Office of Foreign Labor Certification. “DOL OFLC has agreed to review cases where the PERM denial was based on Question H.10-B,” according to AILA’s committee. “OFLC recognizes the inconsistencies in their adjudications over the years and has agreed to review applications where the employer has filed a Request for Reconsideration (“RFR”) based on the Question H.10-B denial. Where the reason for denial is Question H.10-B only, OFLC will pull the case out of the usual order to review and certify the application where appropriate. OFLC has indicated that there are several hundreds of these cases. While OFLC will start reviewing these cases immediately, it may take several weeks to process them all.”
According to AILA, “If you have received a denial of Form ETA 9089 based on Question H.10-B, please file an RFR indicating in your request that the case was denied on the basis of Question H.10-B. If you have already filed your RFR, no further action is needed. If your application is pending, no action is needed yet.”
Vincent Lau, a partner at Clark Lau LLC and current chair of the AILA DOL Liaison Committee, welcomed this response from DOL OFLC. “This is going to be very helpful to many employers. There are remaining details that need to be addressed including what options are there for applications for which an RFR is too late. Nonetheless, OFLC’s response is a move in the right direction.”
Melmed also welcomed the DOL update but advises caution. “There is reason to be optimistic, but DOL has a long way to go to make things right. All of this could have been avoided if they had just followed the law and provided notice to the public.”
Kevin Miner says the broader solution is straightforward.
First, DOL should immediately pause issuing denials on this basis while the agency addresses the problem.
Second, DOL should issue guidance, including Frequently Asked Questions, for how the agency wants employers to answer the question that has generated so many recent denials.
Third, DOL should reopen denied cases that were denied on this basis.
Fourth, DOL should process the pipeline cases (including the reopened cases that were previously denied) consistent with prior adjudication practices, with any new interpretations from DOL coming only after issuing new guidance.
“Taking this approach will resolve most of the erroneously denied cases and provide employers with a clear path going forward,” said Miner. “It will address any DOL concerns and allow the government and employers to return to handling PERM cases in a clear, fair and efficient manner.”