DOL Advises Employers on Handling of PERM, H-2A, and H-2B Applications After Government Shutdown

On October 31, 2013, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced that employers with time-sensitive recruitment or prevailing wage determinations that did not timely submit PERM or H-2B applications due to the shutdown can now file, and the filing will be deemed timely as long as it is filed by November 14, 2013.

Due to the backlog in submissions that were mailed, hand-delivered, or emailed to the DOL, all submissions received by the agency between October 1, 2013 and October 18, 2013, will be deemed to have been received by October 18, 2013. However, should an October 18, 2013 receipt render out-of-date the recruitment or prevailing wage determination used for the application, the application will be deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination.

Employers that decided not to mail or hand-deliver PERM or H-2B submissions to the DOL because of the shutdown may have recruitment or prevailing wage determinations that are now out-of-date. These employers may mail, hand deliver, email, or file electronically submissions no later than November 14, 2013.

Please note that this accommodation only applies to PERM and H-2B applications that had timely recruitment or prevailing wage determinations during the shutdown and are now unsuitable for filing due to expired recruitment or prevailing wage determinations.

Some employers may have been directed by the DOL to respond to a filing deadline that occurred from October 1, 2013 to October 18, 2013. Those H-2A, H-2B, and PERM deadlines in which the due dates for responding occurred during the shutdown will have their due dates extended to November 14, 2013. Among various categories, this includes responses to PERM audits and responses to supervised recruitment.

If an applicant transmitted an application or response by mail, hand-delivery, or email between October 1 and October 18, and the employer has not received notice that the transmission was undeliverable, the employer should not re-submit it.

However, none of the temporary procedures established apply to appeals to the Board of Alien Labor Certification Appeals (BALCA). Employers are encouraged to contact BALCA for information related to deadlines applicable to appeals.