The DOL issued an FAQ entitled, "What should an employer do if it is unable to provide documentation in response to a decision or a request for information in a timely manner, i.e., prior to an established deadline, particularly in extenuating circumstances where the deadline is immediate?"
In this situation, the employer should request an extension in writing. The CO may grant an extension where the employer provides a legitimate reason for the request. For many years, prior to PERM, DÍL played a cat and mouse game with Employers, often maintaining that extensions would not be permitted, but as a matter of Due Process, extensions must sometimes be granted, especially when failure to grant due to extenuating circumstances woud be an abuse of discretion.
The FAQ indicates that a request for extension may be e-mailed to plc.Atlanta@dol.gov or mailed by post or courier to "Department of Labor, ATTN: Request for Extension, Employment and Training Administration, Atlanta National Processing Center, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, Georgia 30303."
As a practical matter, one may both e-mail the request and send send it by certified mail, return receipt requested, to maintain documentation in the Employer's record file.
Naturally, Employers should "clearly reference the application number and type of documentation (e.g. audit request, business existence check) and provide as much detail as possible regarding the application in question, including the employer's name and foreign worker's name."
The FAQ states that a request may even be filed late in rare circumstances such as "when conditions due to extreme weather preclude the employer from timely submitting documents to the Atlanta NPC."
An interesting fact is that the FAQ states that in case of responses to appeals, audits and request for information, the timeliness of the employer's response is based on the date it is mailed (and postmarked) and not the date it is received by the Atlanta NPC. Therefore, if the employer's documentation already has been "submitted by mail and postmarked on or before the established deadline, an extension request is not necessary."
Despite this generous interpretation, it is recommended that applications always be returned and delivered to DOL within the time period and not just postmarked on the due date, as any misunderstanding or problem regarding the due date may be decided against the Employer or may require a lengthy and complex appeaal process.
As a point of reference, prior to PERM, responses to the SWAs had to be received by them no later than the 45th day (although some SWA's allowed postmarked responses on the 45th day) and responses to Notices of Findings and appeal notices had to be sent no later than the 35th day by certified mail, return receipt requested.
The PERM rule has a 30 day limit to respond to audits and denials, where reconsideration or review (appeal) may be requested, owever, prudent employers should alwaysl be sure their responses are received on the 30th day, leaving last day responses only in case of dire emergencies.
Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil.