TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC

On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.

Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window.

Prior accommodations included: the granting until May 12, 2020 of an automatic extension of deadlines to respond to DOL requests for information, if the specific original deadline fell between March 13, 2020 and May 12, 2020; and the granting of up to 60 additional days for employers to file PERM applications where they could not complete the recruitment steps within the regular 180-day window from the first day of the first recruitment step, if the PERM recruitment was initiated between September 15, 2019 and March 13, 2020. Also, the PERM application must have been filed with the DOL by May 12, 2020.

If an employer’s operations are shut down or restricted due to the pandemic, it could become difficult or impossible for an employer to file the PERM application within the requisite 180 days. As per the DOL regulations, a notice of the PERM job opening, called the “notice of filing,” must be physically posted in a way that the employer’s U.S. workers “can readily read the posted notice on their way to and from their place of employment.” Now, based on the DOL’s current position, the employer simply cannot file the PERM application if it cannot post the notice in time.

Employers, whose offices are shut down or only permit a limited number of employees to enter the offices, should consult immigration counsel to discuss strategies on when and how to complete the “wall” posting. Possible strategies include conducting all other recruitment steps first and pushing the “wall” posting towards the end of the recruitment period, and/or by posting at a partially open office based on an assessment of whether a sufficient number of U.S. workers will be able to see the posting, and that arguably in compliance with the PERM regulations.

Unfortunately, the employer cannot replace this physical “wall” posting with only a posting on its intranet or another digital format. If the employer has an additional internal medium with which it normally recruits for comparable positions, it must post on the wall and via this medium. In addition, there must be a 30-day wait period between the last day of that posting and the filing of the PERM application, to give U.S. workers ample opportunity to apply.

Due to COVID-19, the required physical notice of filing posting has now become an obstacle that the DOL could easily alleviate. Hopefully it will rethink its position, given that the impact of the pandemic on employer operations might continue for quite some time.