The U.S. Department of Labor recently posted updated PERM processing dates.  DOL reports that as of March 9, 2011, it was processing the following PERM cases:
   Analyst Review:  February 2011 
   Audit Review:  March 2009
   Standard Appeals:  June 2008
   Government Error Appeals:  Current

Cases in Analyst Review are undergoing initial review – these are the cases for which DOL is currently issuing certifications and audit notices.   This was unchanged from the February 2011 processing date report.

Cases in Audit Review were issued audit notices by DOL, and the employer submitted an audit response to DOL for review.  It is important to note that DOL uses the date of original filing (i.e., the priority date) to determine processing times for all PERM cases.  For example, DOL is reviewing audit responses for PERM cases that were filed in March 2009 and earlier; however, the employer’s audit response may have been submitted several months after that date.  The processing date has moved forward two months from the February 2011 processing report.

Cases in Standard Appeals are denied cases where either a request for reconsideration by DOL or a request for appellate review (i.e., an appeal) was submitted.  DOL now forwards appeals directly to the Board of Alien Labor Certification Appeals (BALCA) for review; however, until late 2009, DOL was processing both reconsideration requests and appeals in the same queue, so the “Standard Appeals” queue may include both requests for reconsideration and appeals.   The processing date is unchanged from the February 2011 processing report.

Government Error Appeals are appeals based solely on an error by DOL, i.e., cases denied for failure to respond to an audit, but the employer did in fact submit a timely audit response.  While an employer may ask for its appeal to be considered under the government error queue, DOL is the sole arbiter in determining whether the decision was government error.  If DOL does not find that the decision was erroneous, the case will move to the Standard Appeal queue for further processing.  DOL has advised that if no decision is issued within 45 days of submitting a government error appeal, the employer should assume that government error was not found, and the case has moved to the standard appeals queue for processing.

Inquiries and Follow up:  DOL states that if a pending application was filed more than three months prior to the reported processing month, an inquiry may be made on the status of the pending application.  Whether a case is behind the processing times will depend on what processing queue the case is in at DOL.  For example, under the DOL’s standards, a case filed in August 2009 would be overdue for initial Analyst Review (February 2011), but not overdue under the Audit Review (January 2009) processing date. 

Jackson & Hertogs is monitoring the status of our pending PERM cases, and following up with DOL when cases are behind the reported processing times.

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