Labor Department Will Not Extend COVID-19 Extension of Time to Respond to Inquiries and Recruit for PERM Filings

In Round 4 of its COVID-19 Frequently Asked Questions (FAQs), the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has confirmed that it will not reinstate its policy that gave employers more time to respond to DOL inquiries and an additional 60-days to file certain PERM applications where recruitment efforts could not be completed within the 180-day regulatory window. Though ongoing concerns related to COVID-19 led stakeholders to request an extension of these accommodations beyond their initial May 12, 2020 expiration date, DOL has allowed them to lapse.

A number of DOL’s other accommodations remain in place, including those related to Labor Condition Application (LCA) postings and the filing of H-2A, H-2B and CW-1 applications. 

Background

On March 20, 2020, DOL issued its first series of FAQs, relaxing some of its rules related to filings under its temporary and permanent programs due to the challenges facing businesses during the COVID-19 pandemic. Notably, Question 3 of FAQ Round 1 gave employers more time to complete certain tasks, including:

• An automatic extension until May 12, 2020 to respond to DOL inquiries with deadlines that fell between March 13, 2020 and May 12, 2020. Affected inquiries included requests for audit documentation, recruitment reports, business verification and sponsorship documentation, etc.
• An additional 60days to file PERM applications provided that the recruitment was initiated between September 15, 2019 and March 13, 2020, and the ultimate PERM filing occurred by May 12, 2020.

What this Means for Employers

DOL’s decision to not renew these accommodations means that employers must submit responses to DOL inquiries by the designated deadline. It also means that PERM recruitment must take place within the regulatory recruitment window. The regulations require that all recruitment measures must begin no more than 180 days before filing the PERM application and must end no less than 30 days before filing the application. For applications filed for professional positions, one of the three additional recruitment steps may occur within 30 days of filing. 

DOL did note that employers needing more time to respond to inquiries may request an extension of time to respond, provided that DOL receives the request on or before the deadline. Requests will be adjudicated on a case-by-case basis, and therefore should clearly articulate the need for an extension. DOL stated that extensions cannot be guaranteed.