On March 20, 2009, The Department of Labor announced current PERM processing times, according to case status as follows:

• No Audit Cases with filing dates in July 2008.
• Audit Cases with filing dates of September 2007.
• Appeal Cases with filing dates of June 2007.

Employers, foreign nationals and attorneys are concerned that the DOL decision-making process is in danger of lapsing into the abysmal, long waiting periods under the old labor certification system. The PERM online filing system promised to cure the three to four year waiting period under the old paper system. Vigilance and proactive action on a national basis is required to halt the rapidly creeping backlog or the PERM system will become as dysfunctional as the old. When PERM was rolled out, the DOL indicated processing times of 45 days. How did 45 days increase to a 18 month delay in Audit Cases?

The situation is far worse than it looks at first blush. Audit Cases sound ominous, but in fact, the Audit Notice often requests copies of data which could be readily obtained from a licensure Website, such as medical licenses, law licenses, and licenses for allied health care workers. If DOL requests that a physician produce a medical license, which can be verified online with a couple of clicks of the mouse, the employer and foreign national and then placed in an undifferentiated audit queue which will result in an 18 month wait at present. There are trigger audits and random audits. Top reasons for triggered audits include:

• Foreign language requirements which are not inherent in the job itself. Example: Requiring knowledge of Spanish for a Spanish language teacher should not trigger an audit to justify requiring knowledge of Spanish.
• Requiring experience gained with same employer in a substantially similar position.
• Employers with less than ten employees.
• Family relationship between the employer and the alien.
• Job requirements in "excess" of the "normal" as defined by the Department of Labor.
• Alien with an ownership interest in the employer.
• Lay-off in same or related occupation.
• Combination of occupations.

Then there are random audits, to which anyone can be subject on a random basis. This is a source of great uncertainly and frustration to all legitimate employers and employees. We suggest that our readers contact their Congressional representatives and complain about the long delays and arbitrary audits. The current process is causing talented foreign national workers to give up and take their skills and knowledge to other more welcoming countries. America cannot afford to further antagonize employers and foreign nationals who follow the rules as we risk losing them in a global economy.

We will post updates as we learn of them.