The PERM As A Subway Map - Some Thoughts On Improving The Existing Permanent Alien Labor Certification System
by Jan Albrecht
I must have worked on too many permanent alien labor certifications that, at some point, I started seeing the new Program Electronic Review Management (PERM) system of the U.S. Department of Labor for what it really is -- a clustered and congested urban transportation network. Except, unlike an actual transportation network, PERM (not to be confused with a city in Russia by the same name) never runs on schedule, its workforce has never heard of customer service, and its technology seems to be evolving backwards; what began as the equivalent to a high speed electric train has turned into a steam powered locomotive -- loud noise, clouds of smoke, and not a lot of speed. But the worst part is that there is no map, just directions at 20 C.F.R. Section 656.17 et al and a log of published decisions at the Bureau of Alien Labor Certification Appeals (BALCA), many of which read almost like cautionary tales for DIYs.
Rendering the PERM as a transportation network metaphor in all of its infographical beauty, I have devised such a map, see image below.
But the pressing question now is if the system can be properly understood as a malfunctioning piece of regulatory infrastructure, what can be done about fixing its numerous defects?
One obvious conclusion is that the Department of Labor must be forced to adopt and stick to a reasonable processing time schedule. For as long as cases are processed without any predictable schedule, the processing delays will continue increasing and will soon ground the system to a halt. (We all know that trains that run without reasonable and predictable schedules make commuting a nightmare). This had already happened with the PERM predecessor under which cases frequently took years to be processed. This is already happening with the PERM as some cases are taking well over 1.5 and as long as 2.5 years to be processed, especially audited cases. Another obvious conclusion is that customer service should not be treated by the Department of Labor as a privilege. Avoiding direct and meaningful contact with the frustrated filers and their representatives in connection with pending cases is hardly a good strategy to promoting efficient transportation on the PERM network. There is something inherently wrong with the system where its users are treated with such contempt. Further, in its quest to fully automate the filing process for permanent alien labor certification applications, the DOL obviously had not thought through how it would handle these applications once they are filed. Now that all applications can be filed fairly quickly and efficiently the focus should be not on improving and consolidating the existing filing systems (such as iCert), but rather on moving already filed applications quickly and efficiently, which includes audited applications as well as requests for reconsideration and appeals. Improving the ticketing systems should not be done at the expense of the speed of trains. Finally, the PERM, just as any other transportation network, is only as good as the people who run it. And the people who run it seem to be disinterested in running it smoothly and efficiently. It is as though we should all be happy that the system actually runs, never mind asking for other tangible benefits - the ultimate triumph of form over substance. Equally problematic is the DOL's excessive reliance on software to do the work intended for humans. While software is good for streamlining the filing of applications, it is hardly useful as an adjudication tool as it lacks the flexibility to analyze conflicting information from multiple sources, resolving all inconsistencies, no matter how minor, negatively, through denials. And the resulting requests for reconsideration and appeals, many of which could have been avoided through proper training of examiners who excessively rely on such software, only exacerbate the backlogs that are plaguing the current PERM system. While it is tempting to let adjudications run on autopilots, applications processed in this fashion lack the necessary element of human discretion, which can distinguish between harmless errors and bona fide grounds for denial. There should be a way for the human examiners to override their own, often deficient, automated systems rather than let the automated systems usurp the input of human adjudicators. Many errors identified on applications by processing software, such as incorrect dates of ads, expirations of prevailing wage determinations, employment dates, could be clarified by humans through simple, even web-based or email-based, requests for additional evidence or clarification. Why can't the filers, many of whom receive a post-filing email to confirm the filing of their application, receive an email asking them to respond to other important questions? This author suggests that this would be a much better practice than simply denying the application. Needless to say, this would also eliminate many unnecessary appeals and re-filings, reducing the strain on the already overburdened system for the obvious benefit of all users.
Jan Albrecht is a solo attorney and principal of Albrecht Immigration Strategies, PC., based in Cambridge, MA and specializing in all areas of employment and family-based immigration. Combining many years of experience as an immigration paralegal for top law firms, a principal of a paralegal services business with a nationwide client base, and an attorney in private practice, Jan is working with individuals, businesses, government agencies, as well as other immigration attorneys and law firms. When not actually practicing law, Jan is always thinking about ways to make his work more interesting and fulfilling to himself and more useful to his clients. Some of Jan's creative ideas on immigration law practice and his innovative immigration law infographics can be seen at his website www.immigrationado.com. He can be reached at firstname.lastname@example.org
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.