The Department of Labor denied applications that employers need to sponsor employment-based immigrants at a significantly higher rate in the second quarter of FY 2023. DOL has denied hundreds of applications for the permanent labor certification (PERM) program based not on worker protections but on how job titles are listed on a government form, according to attorneys. The new data show the DOL denial rate of PERM applications increased—rather than decreased—after DOL agreed to review the cases in March 2023. Later DOL action may have finally addressed the problem.
What The Numbers Show
To obtain “labor certification”—a key step for most employment-based immigrants to obtain permanent residence (a green card)—DOL requires employers to test the labor market by placing advertisements and then filling out Form 9089. DOL never issued guidance on completing the form, notes Lynden Melmed, a partner at Berry Appleman & Leiden, and for years companies filled out the forms in different ways without government officials denying PERM applications. However, in FY 2022 and FY 2023, DOL began to issue more denials based on the answer to one question.
In FY 2022 and FY 2023, DOL officials denied applications at an increased rate connected to responses to Question H.10-B of Form 9089: “Is experience in an alternate occupation acceptable?” for the position. DOL denied many applications as materially incomplete if employers listed job titles or other occupations, even though these “broader” ways of filling out the job requirements on the form would increase the chances a U.S. worker would qualify for the position, noted Melmed.
To immigrants, employers and attorneys, it all seemed like bureaucracy for bureaucracy’s sake. The data tell the story.
A National Foundation for American Policy (NFAP) analysis of DOL disclosure data finds DOL denied more than twice the percentage of PERM applications in the first quarter of FY 2023 (October to December 2022) as in the first quarter of FY 2022 (October to December 2021), 6.2% vs. 3.0%. (Note: the data in this article differ slightly from a March 2023 Forbes article because DOL updated data for previous quarters when it released the second quarter PERM disclosure data.)
The PERM denial rate rose significantly to 8.5% during the second quarter of FY 2023. That represented a 37% increase in the denial rate between the first and second quarter of FY 2023.
In mid-March 2023, the American Immigration Lawyers Association’s (AILA) DOL Liaison Committee 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 a statement from AILA’s committee on March 14, 2023. “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.”
NFAP discovered that in the immediate period after DOL acknowledged the problem, the agency denied more PERM applications, not fewer. DOL denied 11% of PERM applications after March 15, 2023, compared to 7.8% during the second quarter of FY 2023 before March 15, 2023. Data for the third quarter of FY 2023 are not yet available.
Vincent Lau, a partner at Clark Lau LLC and current chair of the AILA DOL Liaison Committee, said his AILA committee alerted DOL about the denials a number of times, including as early as Fall 2022. “We definitely saw much higher numbers of denials in early 2023, and brought this to their attention again in March 2023,” according to Lau. “That’s when we received the call from OFLC in March and we issued the practice alert to AILA members.” Lau said since March he has not heard AILA members reporting denials but instead DOL reversing earlier PERM denials.
On April 14, 2023, the Office of Foreign Labor Certification issued an alert on its website. “As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete,” according to DOL. “OFLC evaluated these denials and determined that while they are appropriate, it has not been consistent about when it denies an application for this reason, which could confuse filers. As a result, OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system.
“Further, OFLC will overturn denials based solely on this issue. OFLC will identify applications that were denied for this issue and for which reconsideration has not yet been requested; employers whose applications have been denied solely for this reason and have not yet requested consideration are encouraged not to submit a request for reconsideration. Where reconsideration has been requested, OFLC will prioritize processing for any pending reconsideration requests based on denials where this is the only denial issue. In cases that have been denied for additional denial reasons, OFLC will overturn the H.10-B. denial reason but uphold the denial on the other grounds if either the employer has not submitted a request for reconsideration for the additional denial reason(s) or where the additional denial ground(s) are determined to be proper.”
Denials for PERM applications based on this issue may be history, but there likely will be new challenges. “OFLC is supposed to be implementing their new ETA 9089 on the FLAG [Foreign Labor Application Gateway] portal as of June 1,” said Lau. “The H.10-B question is gone there. With the new form, I am sure there will be a steep learning curve for everyone, including the potential for more denials and audits until we get more familiar with the form—on both sides.”