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
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
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 firstname.lastname@example.org
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
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,
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