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 email@example.com 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