Due to the COVID-19 epidemic, the Office of Foreign Labor

Certification (OFLC) has alerted employers that through June 30,

2020, PERM labor certification documents will be issued

electronically to employers and their authorized attorneys or

agents. They are currently delivered only by the United States

Postal Service.

It is important to note that labor certifications approved by

the Department of Labor (DOL) must be subsequently filed with an

I-140 Immigrant Visa Petition, either in the EB2 or EB3 category.

Since certifications are only valid for 180 days from the date of

issuance, a filing of the immigrant petition at DOL's sister

agency, the USCIS (US Citizenship and Immigration Services), more

than 180 days after the certification date, results in automatic

cancelation of the certification without any possibility or

reinstatement.

DOL has stated that, to avoid delays stemming from the COVID-19

pandemic, employers whose PERM requests have been approved will

receive the certified copy by email, but if email is not available,

OFLC will send the original form, printed on security paper, by

regular mail delivery.

A recurring problem with electronic mail communications between

employers and DOL is the fact that, all too often, emails go

directly to the spam or junk mail boxes and remain unnoticed. To

prevent this from happening, DOL recommends that employers add plc.atlanta@dol.gov

to their address book or safe list. Failure to receive an email is

generally attributed to the employer, not to DOL, as the latter has

proof that an email was sent.

Employers need to be aware of another part of the rule which

requires that signatures be promptly affixed rather than delayed

unnecessarily. After receipt of an electronic approval, the

document must be promptly signed. To accomplish this, the form must

be printed, signed, and dated by the foreign worker, preparer (if

applicable), and the employer. The penalty for signature delay is

invalidation of certification. This deadline is different from the

180-day deadline for late filing of a petition at USCIS.

DOL has invested in electronic filing and communications with

employers, and disputes regarding communication failures are hard

to resolve. Employers who claim that they have not received DOL

notices abound, but often they simply do not notice the document

and therefore fail to act.

If a glitch occurs, wherein DOL software proves a document was

sent and received, employers have a heavy burden to prove the

contrary. A forensic evidentiary analysis of the employer's

email program may be required to overcome the presumption of

delivery asserted by DOL. However, if the employer fails to file

the petition with USCIS within 180 days for any reason, including

failure of communication with DOL, late-filing of the immigrant

visa petition is never permitted.

Despite some issues with electronic transmittals, the

old-fashioned method of delivery by mail also has a slew of

problems. Employers or their representatives, in fact, do not

always receive certifications that were mailed to them, and there

have been instances of certifications being mailed to the wrong

employer.

Status updates enable employers to keep abreast of the course of

action online regardless of disputed delivery of approved

certifications, and copies of lost certifications can be requested

from DOL according to the PERM Rule.

As we look into the future, electronic transmittal of approved

labor certifications may continue as a pilot program, given the

trend to electrify the process!

Originally published by Lexology on 7 May,

2020

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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