The DOL Office of Foreign Labor Certification (OFLC), at a meeting in May 2016, indicated that the Prevailing Wage, PERM, and H-2B Processing Centers will be undergoing some major changes. Upon recommendations from the efficiency experts at the Office of Personnel Management (OPM), OFLC will be creating new divisions, appointing new directors, and restructuring itself in hopes of creating a more seamless operational and policymaking system. In the meantime, expect processing times to lengthen and the PERM backlog to increase.
Between 2010 and 2015, the overall application load at the OFLC increased by 84 percent while funding and resources decreased by 9 percent. Despite all of the improvements, trainings, cross-trainings, and possible outsourcing to implement the OPM recommendations, OFLC does not expect to be able to maintain the current processing times, which are likely to get worse in the near future. Furthermore, the filing fee provisions that are being considered will not be functional for several years because OFLC does not have a system to collect and distribute fees. We applaud OFLC’s honesty in admitting these realities, if nothing else.
As to the substantive developments about PERM filings, it is important to note that OFLC is continuing to ignore SOC (standard occupational classification) guidance with regard to jobs that have cross-occupational duties. When a prevailing wage is submitted that includes duties from two separate occupations (like management analyst and market research analyst), the adjudicating officer will simply choose the occupation with the higher wage and add a point to the wage level. Skill level, corresponding job zone, and time spent on each duty are completely ignored. Why? OFLC did not provide a substantive answer. The one piece of good news came from OFLC’s consideration of State Workforce Agencies that refer to the potential applicants who never actually apply or show any interest in the job. OFLC did state that the employer is only required to consider applicants; referrals are not applicants for PERM purposes.