The specter of significant backlogs, which plagued the Department of Labor (DOL) for many years, looms again in the realm of PERM labor certification applications. After eliminating the monstrous backlog filed before March 28, 2005, employers and foreign national workers were promised 45 day adjudications for PERM. With cautious optimism, we tested the waters, transitioning from a paper filing system to an online filing system. During the first few years, DOL mostly kept its promise, the Chicago Department of Labor Office consistenly outperforming the Atlanta Department of Labor Office.

In time, the limitations of the online system became apparent as audits of PERM cases increased. The issue we had with audits was not that most were not reasonable, but that audit responses in the Atlanta office were placed in the back of the queue for decision, even when the denial was clearly DOL error. DOL promised to cure this defect. It was certainly difficult to explain to our clients why when an audit simply requested that the employer provide a medical license for a physician, the case should then take months to years for a decision. Note that even in the paper filing system in existence prior to March 28, 2005, a foreign national's credentials were virtually never requested as DOL took the position, from which it has not receded, that proof of the foreign national's qualifications for a job were a USCIS function in connection with the I-140 petition. Thus, requesting alien credentials is a new rule, promulgated without required rulemaking under the APA.

In recent weeks, labor condition attestations needed for H-1B petitions and PERM labor certifications needed for immigrant visas have become log jammed at DOL. DOL has stated that labor condition applications are likely to take up to seven days for adjudication. PERM labor certification cases being audited by DOL are facing almost an 18-month wait, with DOL now reviewing cases with priority dates of March 2007. Even in PERM cases where motions to review have been filed for clear government error, the wait is not significantly shorter. Beyond the obvious, the delays in PERM cases may cause significant status problems for those who wait, including "porting" problems for some H-1B workers. PERM labor certification delays are not likely to improve anytime soon and are predicted to get worse before they get better. Moreover, automatic denials are becoming more and more prevalent even for cases that heretofore were routinely approved. In light of these disheartening trends, human resource and other managers should monitor applicable cases closely.

We urge our clients and readers to make their voices heard by explaining the hardships the delays impose upon American companies attempting to remain competitive and to valuabe foreign national workers. We suggest you fax and email your member of Congress and your Senators. You may locate your Congressional representatives by going to www.congress.org.

We, as members of the immigration bar, are taking proactive steps to prevent the collapse of a system, which is misunderstood by some of the senior government offiicals tasked with operating the system.

We will update you as information becomes available.