INFORMATION FROM DOL ON SOME PERM ISSUES.

In response to some of the examples of problems and issues with the PERM filing system raised by AILA members and forwarded to the Department of Labor, the DOL has provided AILA with the following information and pointers:

Denials

Many members have reported getting a result of denied when they check the automated case status system. It was at first suspected that these denials were a system error, but DOL, upon review, believes that they are, in fact, denied cases. But rather than being denied on what attorneys might consider substantive grounds, they are denied because of PERM's highly rule-based system, which will automatically and more or less immediately deny on certain bases. Some of the bases that have been identified by DOL that have been causing this spate of denials are:

• OES prevailing wage determination dated prior to March 8, 2005. DOL takes the position that the only OES determinations that can be used are those dated March 8 or after.
• The SWA job order must have been for at least 30 days. Many job orders were opened in February, which was a 28-day month this year. Thus, for example, if a job order is listed as having run from 2/14 to 3/14, that period would have fallen short of 30 days.
• At least 30 days must have elapsed since the end of the recruitment period. Apparently, a number of applications have been submitted before the 30 days have run.
• DOL was less straightforward about this point, but it does appear that, if a registration of an employer was made from the attorneys computer rather than the employers, a denial could result. If an employer does not have internet access, DOL suggests that the paper filing, rather than the electronic filing, system be used.
• Answering no to the question of whether the job has been offered to the foreign national listed as beneficiary on the application.

DOL emphasizes that the PERM electronic system is rule-bound, and can be quite unforgiving. Thus, a lot of denials are happening until people get used to the system.

Unfortunately, none of the letters explaining the reasons for the denials have been generated yet, so no one has gotten feedback to explain the denials. However, if you have received a denied status message, you may wish to review the application for one of these factors. Note that the clock wont start on appeal periods, etc. until the written notice is actually issued.

Approvals

DOL reminds users that it has estimated a period of 45 to 60 days for issuance of decisions. Thus, no one has received approvals yet because many applications are still under review by analysts. You can expect to start seeing decisions in mid to late May (which would be 45 to 60 days after the start of the PERM program).

Registration

DOL verifies the existence of each employer that attempts to register. At first, this process went very quickly and employers received their PIN numbers and passwords sometimes within hours. Now that more employers are registering, it is taking an average of two weeks to get feedback on a registration. Because of the length of time its taking to register an employer, some are attempting to register multiple times, thus exacerbating the problem.

In many cases, DOL is sending back emails indicating that it cannot verify the employers existence and/or asking for documentation to verify that existence. DOL provided some pointers to avoid these requests or, if received, to respond to them:

• On the form, please make sure that the company's Headquarters address is included as the company address. You can put the address of the office where the beneficiary will work in the appropriate box, but its the overall corporate address that is pivotal on the existence check.
• Avoid doing business as (dba) names wherever possible, and instead use the company's legal name. The dba may complicate an existence check.
• For companies that have several EINs, please use the EIN that the company had when it filed its articles of incorporation. If a separately incorporated subsidiary is registering, do use that subsidiary's EIN, but don't use a different EIN if the employer is just a division, or otherwise is not a legally separate entity.
• The DOL recognizes that the Form SS-4 may not be readily available to some employers. If you've received a request for documentation to verify the employers existence that requests a Form SS-4, the DOL indicates that it will accept the employers most recent quarterly tax return instead. It has recently changed its requests to include that option, but if you received one of the old requests that gives no alternative to the Form SS-4, please be advised that the quarterly tax return is nonetheless an option.
• To create a sub-account for an attorney, the employer must log on using the designated PIN and password and create the account.
• The employer can view all filings prepared by attorneys for which it has set up sub-accounts, but an attorney can view only the applications he or she has done, and cannot view any filings done by the employer or its other attorneys.
• Because DOL wants the employer to be answerable for the process, an attorney will need to have a separate user account and password for each of its client companies. DOL realizes the difficulties this presents in managing multiple passwords, but is insistent on this system.
• When an employer registers, it gets two emails, one providing the PIN and one providing a password. The employer is then supposed to log on and change the password to one of its own choosing. DOL notes that some employers have been simply forwarding the PIN and password to the attorney, and then the attorney logs in and changes the password. The employer then loses control of the account, as it no longer has control of the password. DOL asks that employers make the password change themselves, as DOL want the employer to maintain control of the master account.
• Some employers have been having trouble receiving the emails with the PINs and passwords because of their spam filters. Because they come in two consecutive emails from the same sender Dept. of Labor some spam filters clear the emails out into the spam box. This, apparently, is a particular problem with those who use AOL as their ISP. One solution DOL suggests (apart from checking your spam box) is to create a free email account on Yahoo or hotmail for this purpose and thereby bypass the AOL filters. You might also be able to turn off some of AOL's spam blocking.

Preparing and Filing the Application

DOL also had some explanations for problems encountered in completing and filing the application, and checking its status:

• When you are preparing an application in draft, the system assigns a case number with a T prefix (for temporary). When you hit submit, the number remains the same with respect to the digits, but the prefix changes. A case number with a prefix of A went to the Atlanta center, and a prefix of C went to the Chicago center. Thus, when you are searching for the case to check status, please note the prefix change, or you can get a result of incomplete when you use the T prefix. You can also successfully search using just the digits, and omitting the letter prefix.
• When you are in the middle of preparing an application, you can save as a draft at each step. When you complete the application, be sure to click Submit. If you click save as draft, the application will not be submitted. If you are unsure if you submitted or not, search for the case status. If it shows up as Incomplete, you saved it as a draft and did not submit it.
• If your system is timing out when you're working on an application, chances are that the problem is your browser. This should not be happening with the common browsers, like Explorer. However, DOL has noticed that it happens consistently with the AOL browser. Note that most AOL users are not using the AOL browser, but sometimes, if you've downloaded from an AOL CD, you might have downloaded the AOL browser. You will find that you don't want to use that browser because of the time out problem.