United States: DOL Announces Accommodations for PERM and Other Filings Impacted by the Government Shutdown

If an employer’s response to a PERM Request for Information (RFI) or audit was due between October 1 and November 2, the due date is automatically extended by 33 calendar days – which equals the number of days during which DOL staff was furloughed before being called back to work on November 3.

Similarly, for denied PERM cases, if the deadline to file a Request for Reconsideration or Request for Review fell between October 1 and November 2, the deadline for filing the Request for Reconsideration or Review is automatically extended by 33 calendar days.

Although these filings benefit from an auto-extension of the deadline, DOL’s announcement strongly encourages submission of these filings as soon as possible, using the FLAG online portal.

For PERMs with recruitment or prevailing wage determinations (PWDs) that expired between October 1 and November 2, the DOL announcement states that employers may submit the ETA 9089 PERM application online through the FLAG portal using the expired recruitment or PWD “during the same 33 calendar day period during which an automatic deadline extension has been provided.”

It is unclear whether this language means that employers have only 33 days from the original filing deadline in which to submit a PERM application through FLAG, or whether employers may have 33 days from November 2, or possibly from the date of the announcement, to file these cases. Clarification from DOL will be needed. However, because the accommodation may mean that employers have only 33 days from the original filing deadline to file the PERM application, employers with PERM cases with recruitment or PWDs that expired between October 1 and November 2 should file these applications through FLAG as soon as possible.   

Although filers may receive warning messages from the FLAG system when attempting to submit PERM cases with expired recruitment or an expired PWD, the DOL announcement confirms that employers will still be able to complete and submit these applications through the FLAG portal.

DOL also states that if an employer believes a PERM application has been improperly denied due to expired recruitment or an expired PWD, the employer may file a Request for Reconsideration explaining the circumstances and request reversal of the denial.

These cases benefit from the same 33-day auto-extension of response deadlines, including deadlines to respond to Notices of Acceptance and Notices of Deficiencies.

In addition, DOL notes that existing emergency filing procedure regulations allow H-2A and H-2B employers to request a waiver of the regulatory period for filing an application, and permit CW-1 employers to request permission to submit an application without first having obtained a PWD, upon a showing of good and substantial cause. As DOL recognizes that many employers were unable to timely file these applications when the FLAG system was unavailable, the agency’s announcement encourages employers to submit emergency requests under these existing regulatory authorities.  

In cases where an employer opted to submit a permanent or temporary labor certification filing by mail or commercial delivery service during the period FLAG was unavailable, DOL states that such submissions will be considered filed on the date on which the submission was postmarked. Any correspondence sent by email will be considered received the day it was sent.

DOL will manually enter paper applications into the FLAG system. Upon entry into the system, a case number will be assigned and the employer will receive a notification informing them that the application has been received for processing. The application receipt date entered into the FLAG system will correspond to the date the application was postmarked.

DOL’s announcement does not address whether employers that submitted paper applications or other filings by mail, courier, or email may resubmit or upload these filings in the FLAG system now that it is back on line. Unless further clarification is provided, resubmission through FLAG of PERM applications previously submitted by paper is not recommended unless the paper filing has first been successfully withdrawn, as the resubmitted FLAG filing could be subject to denial as a duplicate filing.

DOL’s announcement provides an important accommodation for employers whose labor certification cases were impacted by the government shutdown. Employers that refrained from submitting filings with deadlines that fell during the period the FLAG system was unavailable should submit these filings as soon as possible.

Fragomen is closely monitoring the resumption of operations at DOL and will provide further updates as developments occur.