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Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

July 05, 2009

OIG Investigations of Fraud, Waste and Abuse

The office of the Inspector General of the United States Department of Labor maintains a site on the internet with interesting information about audits of DOL programs.

The site opens with the phrase, "Understanding the Audit Process in DOL," and identifies key issues, such as the selection, definition, and processing of audits. These are audits of the agency itself.

DOL explains that the purpose of audits is to learn how to administer future PERM cases based on mistakes made in the past by Employers.

DOL's priorities happily are program dollar value, and vulnerability to fraud, waste and abuse. In making these analyzes, DOL bears in mind statutes and regulations, sensitivity, newness or changed conditions, federal resources, results of prior audits, and congressional requests.

The term audit is defined to include not only an analysis of dollar value, but also compliance with laws, economy and efficiency of operations, as well as effectiveness in achieving program results.

In other words, not only does the DOL audit Employers and their PERM applications as part of the PERM rule, but it also audits itself, i.e., its efficiency and honesty in giving services to the public.

Under the heading, "Program Fraud," the OIG explains that it investigates Worker's Compensation, Foreign Labor Certification, Unemployment Insurance, the Workforce Investment Act and the Job Corps. Current news releases of wrong-doing may be found at .

The site's electronic newsletter contains an article about a senior attorney at ICE who received a bribe of $20,000.00 in connection with the issuance of a visa, as well as cases involving applications filed for certification without their authorization, IT companies that brought foreign workers into the US without real job opportunities available at the time of their arrival in this country, and misuse of DOL documents to obtain driver's licenses in Florida.

FOIA procedures are explained, since the agencies activities are discoverable under the Freedom of Information Act.

The site is interesting, informative, and sheds light on the overall function of the DOL, its efforts to police itself, and to police those who use its services.

The OIG, however, does not limit itself to investigation of fraud, but also wants to investigate allegations of waste and abuse (common characteristics of all immigration proceedings).

There is obviously a line to be drawn between an agency's interest in performing its job duties under the law and an agency's wasteful or abusive approach to that function.

Prior to PERM, labor certification applications took many years to be processed by DOL, through the SWA's and federal offices. Cases in certain states (California, NY, NJ) took up to five years. 

No doubt OIG audits of these backlogs contributed to the creation of the PERM rule in 2005, which was supposed to eliminate this problem, by streamlining labor certification processing with PERM, an acronym for "Program Review Electronic Management."

Nevertheless, PERM application processing time now exceed the anticipated processing time of several months, as announced in the PERM regulation, and cases of PERM applications audited by the Certifying Officer (as opposed to OIG audits of the agency itself) may place a PERM case spinning into a lengthy process require several years to be resolved. Such delays are similar to the delays suffered under the pre-PERM rule.

No doubt today's quagmire will someday be replaced by a "Super PERM" when computer technology develops to the point that DOL can process PERM applications at the speed of light.