DOL Corrections to Previously Denied PERM Cases
Posted Jul 15, 2005
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There have been reports by members of the American Immigration Lawyers Association (AILA) of instances where the indication of "denied" on some PERM cases within the U.S. Department of Labor (DOL) online status system now indicate that the cases are being processed to completion. As explained in our June 24, 2005 MurthyBulletin article, DOL Update June 2005: PERM and Backlog Reduction Centers, many PERM filings were denied almost instantaneously due to computer glitches in the DOL's system.
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DOL Reopening Previously-Denied Cases
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The DOL is working to correct these systemic errors and automatically resubmitting these previously-denied cases for processing again. For this reason, these cases may reflect a change from "denied" to another status, like "audit" or "final review" to indicate that these are pending at the DOL for a review and final decision. The DOL has requested that attorneys and employers not resubmit the previously-denied cases since they are trying to reopen them and re-adjudicate them. They do not want the system again getting clogged with duplicate filings by the same employer for the same employee for the same job opportunity.
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Problems with Other Cases Being Denied
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Separate from the positive action discussed above, some cases are showing as denied when such a denial would not normally be expected. The DOL has indicated that they are still in the process of correcting the decision matrix technology that is creating these problems. DOL recommends that employers not resubmit a denied PERM case until the decision matrix problems have been resolved. It is possible at this stage that the DOL will retract the "denied" status in some cases.
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The problem for employers and employees is that there is no assurance that a particular case will be resubmitted for processing again by the DOL, on its own. Most people want to file and obtain PERM approvals, rather than wait and find that the case was denied, after all.
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It is also a problem for cases in which the employer attempts to transfer the earlier priority date from an older "identical" case filed under the regular or RIR process before March 28, 2005. Should DOL cancel the earlier case based on the new PERM filing, and that PERM case be denied for a technical reason, the attorney could wait for the DOL to reopen the case rather than appeal the decision in a timely fashion. The DOL has indicated that it will send written denial notices and that the period to appeal begins when the written notice is sent. If the attorney believes that the case will be resubmitted, it is possible that the attorney would err by not filing an appeal based on the denial notice, and the 30-day time to appeal the “identical” filing denial will expire. This could make it is possible for the earlier priority date to be lost forever - a big penalty to pay if visa retrogressions become further backlogged! 
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Conclusion
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Although there have been steps in the right direction with the DOL and the PERM system, and some cases have been approved, PERM continues to be in a transitional and problematic stage. We do hope that the DOL can resolve the problems with the decision matrix so that labor certification cases can be filed with the confidence that they will be properly and promptly adjudicated on their merits, rather than denied due to problems with the technology.