Fall 2024 Current Issues for PERM Labor Certifications: What Employers Need to Know | Holland & Hart – Employer Solicitors

As we move into the fall of 2024, employers navigating the PERM labor certification process face a number of challenges. The process — critical to sponsoring foreign workers for permanent residency — has become more complex due to funding shortfalls at the Labor Department’s Office of Foreign Labor Certification (OFLC), increased scrutiny of applications and longer processing times. If your company sponsors employees for green cards, understanding these issues is crucial to avoid delays and ensure compliance.

Here’s what you need to know and how to manage the most pressing PERM issues facing employers today.

1. Lack of OFLC funding causes long delays

OFLC, responsible for processing PERM labor certifications, is facing budget constraints that have resulted in significant delays. This means that key parts of the process, such as salary determinations and application reviews, take much longer than before.

What this means for your company:

• Start early: Start the labor certification process as soon as possible. These delays can extend deadlines by months, so it is essential to factor in the extra time.
• Be aware of deadlines: Keep a close eye on all deadlines and make sure your HR team understands the timeline for recruiting and filing.

2. Increase in Requests for Information (RFI)

Employers are seeing more Requests for Information (RFIs) from the Department of Labor. These requests often request clarification or additional documents related to the job description or recruiting efforts. This trend increases the workload and delays the approval process.

How is it prepared:

• Clarify job descriptions: Make sure your job requirements are clearly outlined and reasonable. Avoid listing excessive qualifications that could make it difficult for US workers to meet the criteria.
• Keep detailed recruitment records: Ensure that all documentation related to your recruiting efforts (eg, job postings, resumes received, reasons for not hiring US workers) is complete and consistent with the PERM submission.

3. Delays in establishing prevailing wages

The process of obtaining prevailing wage determinations—a critical first step in the PERM process—has become a major bottleneck. Currently, the DOL is taking longer than usual to issue these determinations, which are required before we can proceed with recruitment or filing.

What you can do:

• Plan for delays: Allow for longer processing times and start this step well in advance of when you plan to recruit.
• Alternative sources of salary: In some cases, employers may use private wage surveys as alternatives to DOL wage data, but these require careful review and approval.

4. Policy changes on the horizon

Employers should also be aware of potential changes in labor certification policies. In the fall of 2024, there was talk of:

• Recruitment Requirements: New regulations could change the way recruitment is carried out, so it is essential to be informed of any updates that could simplify or complicate the process.
• Salary Level Updates: There may be changes in the salary levels required for different positions, which could affect your foreign labor budget.

Be informed: Work with your legal team to monitor regulatory developments that may affect your labor certification process.

5. Increased audits in certain industries

The DOL is also increasing audits in sectors such as technology and healthcare, where there is significant demand for foreign talent. These audits can further delay the certification process and require additional documentation to demonstrate compliance with the PERM process.

Be proactive:

• Conduct internal audits: Before the DOL comes knocking, make sure your company’s PERM filings and recruiting documentation are in order.
• Respond quickly to audits: If your company is audited, provide timely and thorough responses to minimize disruption.

6. Increased compliance expectations

The DOL is ramping up its enforcement efforts in 2024, which means employers need to be more vigilant about compliance. The agency focuses on areas such as recruiting efforts and qualifications to ensure employers are truly seeking US workers before turning to foreign talent.

Key steps to stay compliant:

• Document everything: Keep detailed records of your recruiting efforts, including job postings, resumes received, and reasons for not selecting US workers. This documentation should be prepared in the event of an audit.
• Be consistent: Make sure the job descriptions, requirements, and salaries provided in your recruiting materials align with what you file with the DOL.

Looking ahead

The PERM labor certification process is more complex than ever due to lack of funding, increased scrutiny, and longer processing times. While this may seem daunting to employers unfamiliar with immigration, success is still achievable with the right strategy.

Start early and plan ahead – given the delays, starting the PERM process well in advance of when your green card is needed is crucial. Keeping the organization with detailed documentation of recruitment efforts, job qualifications and salary determinations will also help avoid complications, especially in the face of audits and more frequent information requests.

Working with an experienced immigration attorney is key to navigating the complexities of labor certification. Your legal team can help you catch problems early, ensure accurate filings, and respond effectively to government inquiries. Staying informed about policy changes and staying flexible will also help you adapt as new challenges arise. While the current landscape is challenging, employers who remain proactive, organized and informed can successfully sponsor foreign talent and build a globally competitive workforce.