The U.S. DOL reportedly awarded the contract to a private contractor in Lamham, Maryland, on June 30, 2004, named Exceed Corportion, to handle processing of the permanent labor certification applications at the Philadelphia and Dallas Backlog Reduction Processing Centers. The contract amount is $16,079,413.00. The Exceed Corporation is currently actively recruiting people to fill the positions including 60+ Analysts each to work at the Philadelphia and Dallas Centers. These jobs can open an opportunity for some of the current state labor certification staffs to get a job which they are familiar with.
Maryland SESA Tracker
- Thread starter Sol
- Start date
- Status
See the following link for contractors recruitment for BRC
http://www.exceedcorporation.com/careers_positions.htm
http://www.exceedcorporation.com/careers_positions.htm
Where is the PERM?
Probably, by now people are sick to hear the term "PERM." There have been few "promised lands" which have not been kept and frustrated people as bad as this one. Ever since the DOL released the so-called "Five-Year Strategic Plan" in 1999 announcing the backlog reduction strategies which included the backlog reduction for existing cases and start of the PERM program for the new cases, it has surfed unknown territorial water over and over with no end in sight. After a struggle, DOL was successful in releasing the "proposed" regulation. Reportedly, the proposed regulation produced mountains of comments of pros and cons, giving the DOL an excuse for the further delays. Along the way, there was a change of leadership in the Foreign Labor Certification Division in the DOL leading to another delays. For heaven sake, despite the hurdles after hurdles, the DOL was able to work out the final regulation under the new leadership and forwarded it to the OMB in the White House in February 2004. When the 90-day review ended on May 21, 2004, the DOL reportedly requested the OMB to extend the OMB review because of the comments from its sister and brother agencies of Homeland Security Department, State Department, Department of Justice, etc. In the June AILA National Conference in Philadelphia, the Chief of the Foreign Labor Certification of DOL who was in charge of the PERM disclosed that the final regulation had to be revised because of the "room for fraud" concerns addressed by its sisters and brothers. The question remains where these brothers and sisters were when the proposed regulation was released!
Now this regulation is being held hostage in the White House. The American economy is continuously struggling despite the rosey picture some so-called "financial analysts" and political pundits attempt to draw through the cable TVs, Internets, and printed newspapers. Unemployment rate continues to remain high without much changes. Outsourcing has already given a trouble to the Bush Administration in the 2004 election politics. Now, we start hearing a rumor that the concept of "21-day" approval of foreign labor certification rather than taking years and years is the last "word" which the White House wants to hear under the current election environment. Anti immigration forces have also been working hard to picture the PERM program as "opening a flood gate for the foreign cheap laborers." The truth of this rumor is still unverificable. One thing we can only tell is that the regulation is going nowhere in the OMB, White House. The 90-day extension will reach on August 20. God knows what will happen then. No wonder why people hate politics and the term "politician" is not a noble term, unlike "statesman." Come November, whoever wins, we want to see a life which is not "totally" washed out by politics.
Probably, by now people are sick to hear the term "PERM." There have been few "promised lands" which have not been kept and frustrated people as bad as this one. Ever since the DOL released the so-called "Five-Year Strategic Plan" in 1999 announcing the backlog reduction strategies which included the backlog reduction for existing cases and start of the PERM program for the new cases, it has surfed unknown territorial water over and over with no end in sight. After a struggle, DOL was successful in releasing the "proposed" regulation. Reportedly, the proposed regulation produced mountains of comments of pros and cons, giving the DOL an excuse for the further delays. Along the way, there was a change of leadership in the Foreign Labor Certification Division in the DOL leading to another delays. For heaven sake, despite the hurdles after hurdles, the DOL was able to work out the final regulation under the new leadership and forwarded it to the OMB in the White House in February 2004. When the 90-day review ended on May 21, 2004, the DOL reportedly requested the OMB to extend the OMB review because of the comments from its sister and brother agencies of Homeland Security Department, State Department, Department of Justice, etc. In the June AILA National Conference in Philadelphia, the Chief of the Foreign Labor Certification of DOL who was in charge of the PERM disclosed that the final regulation had to be revised because of the "room for fraud" concerns addressed by its sisters and brothers. The question remains where these brothers and sisters were when the proposed regulation was released!
Now this regulation is being held hostage in the White House. The American economy is continuously struggling despite the rosey picture some so-called "financial analysts" and political pundits attempt to draw through the cable TVs, Internets, and printed newspapers. Unemployment rate continues to remain high without much changes. Outsourcing has already given a trouble to the Bush Administration in the 2004 election politics. Now, we start hearing a rumor that the concept of "21-day" approval of foreign labor certification rather than taking years and years is the last "word" which the White House wants to hear under the current election environment. Anti immigration forces have also been working hard to picture the PERM program as "opening a flood gate for the foreign cheap laborers." The truth of this rumor is still unverificable. One thing we can only tell is that the regulation is going nowhere in the OMB, White House. The 90-day extension will reach on August 20. God knows what will happen then. No wonder why people hate politics and the term "politician" is not a noble term, unlike "statesman." Come November, whoever wins, we want to see a life which is not "totally" washed out by politics.
Now as the RIR date moved to April 2002, anybody whose cases have been filed in March 02 in MD, check with your lawyers and update the forum with any news. I mean is it approved or any NOFs etc?
This sure would indicate a trend of the process followed at MD SESA.
Thanks a lot
This sure would indicate a trend of the process followed at MD SESA.
Thanks a lot
News on Labor Certification Backlogs and PERM
The Department of Labor’s (DOL) recently published semi-annual regulatory agenda suggests that a major labor certification backlog reduction effort is forthcoming. In fact, Congress has already funded a labor certification backlog reduction program, so the unanswered questions are when will it be implemented and what will it accomplish? A reduction in the labor certification backlog is desperately needed because in many jurisdictions it now takes DOL more than three years to process a standard labor certification application, and two years to process a Reduction in Recruitment (RIR) case. DOL has indicated that it will soon create two “backlog reduction centers,” one in Philadelphia and another in Dallas. The purpose of these centers is to significantly reduce the processing time in backlogged states over the next two years. Labor certification processing times at both local DOL offices and regional offices can be viewed at http://www.ows.doleta.gov//foreign//times.asp.
DOL’s long anticipated, fast-track PERM labor certification program, however, may have hit another snag. It appears DOL may elect to republish a new proposed PERM rule for another round of comments before PERM is in place. This could delay the arrival of PERM for another year or more. Alternatively, DOL may publish what is known as an interim rule to implement PERM immediately, perhaps after the November elections. That, however, could lead to litigation challenging PERM.
Some employers have expressed concern about proposed provisions in PERM that would make labor certification available to far fewer foreign nationals. There also is growing distrust that PERM will reduce labor certification processing times from years to weeks, as promised. Government agencies, and our firm too, are concerned that the PERM program could lead to widespread fraud and ironically, to delays too. This is because to obtain labor certification under PERM, employers merely will need to say that they have unsuccessfully conducted recruitment for qualified U.S. workers, rather than actually present evidence of that fact. Easy-to-obtain labor certifications, whether fraudulent or bona fide, could lead to an avalanche of applications for permanent resident status, and additional processing delays at Citizenship and Immigration Services (CIS).
The Department of Labor’s (DOL) recently published semi-annual regulatory agenda suggests that a major labor certification backlog reduction effort is forthcoming. In fact, Congress has already funded a labor certification backlog reduction program, so the unanswered questions are when will it be implemented and what will it accomplish? A reduction in the labor certification backlog is desperately needed because in many jurisdictions it now takes DOL more than three years to process a standard labor certification application, and two years to process a Reduction in Recruitment (RIR) case. DOL has indicated that it will soon create two “backlog reduction centers,” one in Philadelphia and another in Dallas. The purpose of these centers is to significantly reduce the processing time in backlogged states over the next two years. Labor certification processing times at both local DOL offices and regional offices can be viewed at http://www.ows.doleta.gov//foreign//times.asp.
DOL’s long anticipated, fast-track PERM labor certification program, however, may have hit another snag. It appears DOL may elect to republish a new proposed PERM rule for another round of comments before PERM is in place. This could delay the arrival of PERM for another year or more. Alternatively, DOL may publish what is known as an interim rule to implement PERM immediately, perhaps after the November elections. That, however, could lead to litigation challenging PERM.
Some employers have expressed concern about proposed provisions in PERM that would make labor certification available to far fewer foreign nationals. There also is growing distrust that PERM will reduce labor certification processing times from years to weeks, as promised. Government agencies, and our firm too, are concerned that the PERM program could lead to widespread fraud and ironically, to delays too. This is because to obtain labor certification under PERM, employers merely will need to say that they have unsuccessfully conducted recruitment for qualified U.S. workers, rather than actually present evidence of that fact. Easy-to-obtain labor certifications, whether fraudulent or bona fide, could lead to an avalanche of applications for permanent resident status, and additional processing delays at Citizenship and Immigration Services (CIS).
PERM Final Regulation Rulemaking Process in ZigZag
There is a wide spread rumor in the immigration lawyers community that the OMB review will not be completed until the November election is over. This rumor is premised on the theory that the White House is strongly opposing this regulation for the reason that it may be taken as an amnesty by the public and can affect the election. However, this rumor can materialize only if the President turns down the regulation because of the law that governs the OMB review. Because of the OMB review rule, the PERM regulation will have to be either rejected by the President or approved within 180 days from the date of submission of the regulation by the DOL, which was February 23, 2004. Let's review the OMB review rules.
The law that governs the OMB review is Executive Order 12866 of October 4, 1993. The Section 6 (b)(2) provides that OIRA (subunit of OMB) "shall" waive or notify the agency in writing of the results of its review within the following time periods: (A) For any notices of inquiry, advance notices of proposed rulmaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA. (B) For all other regulatory actions, within 90 calendar days after the date of submission of the information..., unless OIRA has previsouly reviewed this information and, since that review, there hs been no matierial change in the facts and circumstancds upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and (C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of teh agency head.
The PERM regulation falls under Section 6(b)(2)(B) and (C). As we reported earlier, the DOL Foreign Labor Certification Chief disclosed that there was material changes to the Proposed PERM regulation as the DOL's final regulation incorporated substantial changes to the published Proposed PERM Regulation. Accordingly, under the Section 6(b)(B), the OMB was given 90 days to complete the review, which expired on May 21, 2004. However, the DOL Chief also disclosed that on May 21, 2004, it requested the OMB to extend the review because of the concerns of fraud raised by its sister/brother federal agencies and apparently part of the regulation were revised. Under the Section 6(b)(2)(C), the OMB was given only 30-day extension, which expired on June 20, 2004.
Why this regulation is still under the OMB review and under what authority?
The Section 7 of the Executive Order 12866 states that in the event that there is a conflict among agencies which cannot be resolved by the Director of OIRA(OMB), it moves to the Vice President to resolve the conflict and the President and Vice President make a decision. Under the provision, though, such resolution must be made within 60 days from the referral by the Director. Assumedly, this 60-day also expired on August 20, 2004. The fact that the case is still at the OMB reflects that the OMB could not resolve the conflict and turned over to the Vice President for resolution. Otherwise, the OMB should have completed by June 20, 2004 one way or another. The OMB cannot arbitrarily change the review period. Now the expiration date of the resolution of the issues by the Vice President and the President is gone, and the President must announce his decision. Under the Executive Order, he does not have authority to extend the OMB review any further, Either he should reject the rulemaking or approve it as far as this reporter see the Executive Order 12866. We hope to see such announcement within next week.
There is a wide spread rumor in the immigration lawyers community that the OMB review will not be completed until the November election is over. This rumor is premised on the theory that the White House is strongly opposing this regulation for the reason that it may be taken as an amnesty by the public and can affect the election. However, this rumor can materialize only if the President turns down the regulation because of the law that governs the OMB review. Because of the OMB review rule, the PERM regulation will have to be either rejected by the President or approved within 180 days from the date of submission of the regulation by the DOL, which was February 23, 2004. Let's review the OMB review rules.
The law that governs the OMB review is Executive Order 12866 of October 4, 1993. The Section 6 (b)(2) provides that OIRA (subunit of OMB) "shall" waive or notify the agency in writing of the results of its review within the following time periods: (A) For any notices of inquiry, advance notices of proposed rulmaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA. (B) For all other regulatory actions, within 90 calendar days after the date of submission of the information..., unless OIRA has previsouly reviewed this information and, since that review, there hs been no matierial change in the facts and circumstancds upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and (C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of teh agency head.
The PERM regulation falls under Section 6(b)(2)(B) and (C). As we reported earlier, the DOL Foreign Labor Certification Chief disclosed that there was material changes to the Proposed PERM regulation as the DOL's final regulation incorporated substantial changes to the published Proposed PERM Regulation. Accordingly, under the Section 6(b)(B), the OMB was given 90 days to complete the review, which expired on May 21, 2004. However, the DOL Chief also disclosed that on May 21, 2004, it requested the OMB to extend the review because of the concerns of fraud raised by its sister/brother federal agencies and apparently part of the regulation were revised. Under the Section 6(b)(2)(C), the OMB was given only 30-day extension, which expired on June 20, 2004.
Why this regulation is still under the OMB review and under what authority?
The Section 7 of the Executive Order 12866 states that in the event that there is a conflict among agencies which cannot be resolved by the Director of OIRA(OMB), it moves to the Vice President to resolve the conflict and the President and Vice President make a decision. Under the provision, though, such resolution must be made within 60 days from the referral by the Director. Assumedly, this 60-day also expired on August 20, 2004. The fact that the case is still at the OMB reflects that the OMB could not resolve the conflict and turned over to the Vice President for resolution. Otherwise, the OMB should have completed by June 20, 2004 one way or another. The OMB cannot arbitrarily change the review period. Now the expiration date of the resolution of the issues by the Vice President and the President is gone, and the President must announce his decision. Under the Executive Order, he does not have authority to extend the OMB review any further, Either he should reject the rulemaking or approve it as far as this reporter see the Executive Order 12866. We hope to see such announcement within next week.
USCIS Dilemma of I-140 Portability and Concurrent Filing/Concurrent Adjudication
08/25/2004: USCIS Dilemma of I-140 Portability and Concurrent Filing/Concurrent Adjudication
People may recall the background of enactment of AC 21 legislation. The legacy INS was in a total mess and backlogs kept piling up, particularly I-485 and H-1B processing. When the law was enacted, the employment-based immigration proceedings were bifurcated and unless I-140 was approved, no one could file EB-485. The backlog the Congress was interested in was I-485 applications and I-140 petition proceeding backlog was not within the parameter of the legislative intent. This is clear from the reading of I-140 portabilty provision under AC 21 and not well publicized portion of the legislation which strongly recommended the legacy INS to adjudicate I-485 in 180 days. It was a recommendation and not a mandate. The I-140 portability legislation was assumedly enacted to pressure the legacy INS to reduce I-485 processing times to 180 days. Bush's proclaimed announcement of immigration benefits processing time to 180 days was not a coincidence.
The problem is that the agency conceived the idea of concurrent I-140/I-485 filing prior to the enactment of AC 21 and apparently by the time it was enacted as a regulation, the agency probably did not review seriously the impact of the concurrent filing to the I-140 portability provision in the AC 21 Act. Consequently, the agency had to deal with the difficult task of reconciling between the legislative provision that allows the I-485 filers to change employment after 180 days of filing and the same legislative provision that provided portability of I-140 petition and not I-485 application. If this conflict was created by the agency for oversight, there are only two remedies available for the agency to correct their mistakes. One is to introduce a legislation to amend the relevant provision of AC 21 or better yet the agency process the concurrently filed I-140 petitions within 180 days so that the I-140 can be ported after passage of 180 days of I-485 filing. We realize the predicament of the agency to accept the concept of I-140 portability when I-140 has yet to be adjudicated. When there is no approved I-140 petition, at least theoretically, there is no I-140 to be ported.
Unfortunately, the agency has been moving completely opposite direction when it announced concurrent adjudication of I-140/I-485. Since the announcement, the concurrently filed I-140 has been held hostage assumedly in order for the agency to adjudicate I-140 and I-485 concurrently. The backlog of I-485 is not something which the agency can achieve in the near future, not probably until September 30, 2006. We cannot tolerate the AC 21 legislation remained beaten and bruised so hard by the agency's failure to coordinate its action with the spirit and intent of the AC 21 legislation. It is not impossible task for the agency to correct its mistakes and reconcile the conflicts: Agengy should set a goal of adjudicating the concurrently filed I-140 petition within 180 days and adjudication of I-140 petition for the concurrently filed cases should not be held hostage to implement its concurrent adjudication of concurrently filed I-140 and I-485. The agency should never betray the legislative intent of a law, AC 21 in the instant situation, by blocking implementation of the legislative intent through a circumbent action to lay a road block to the I-140 portability and change of employement for the I-485 filers after 180 days.
08/25/2004: USCIS Dilemma of I-140 Portability and Concurrent Filing/Concurrent Adjudication
People may recall the background of enactment of AC 21 legislation. The legacy INS was in a total mess and backlogs kept piling up, particularly I-485 and H-1B processing. When the law was enacted, the employment-based immigration proceedings were bifurcated and unless I-140 was approved, no one could file EB-485. The backlog the Congress was interested in was I-485 applications and I-140 petition proceeding backlog was not within the parameter of the legislative intent. This is clear from the reading of I-140 portabilty provision under AC 21 and not well publicized portion of the legislation which strongly recommended the legacy INS to adjudicate I-485 in 180 days. It was a recommendation and not a mandate. The I-140 portability legislation was assumedly enacted to pressure the legacy INS to reduce I-485 processing times to 180 days. Bush's proclaimed announcement of immigration benefits processing time to 180 days was not a coincidence.
The problem is that the agency conceived the idea of concurrent I-140/I-485 filing prior to the enactment of AC 21 and apparently by the time it was enacted as a regulation, the agency probably did not review seriously the impact of the concurrent filing to the I-140 portability provision in the AC 21 Act. Consequently, the agency had to deal with the difficult task of reconciling between the legislative provision that allows the I-485 filers to change employment after 180 days of filing and the same legislative provision that provided portability of I-140 petition and not I-485 application. If this conflict was created by the agency for oversight, there are only two remedies available for the agency to correct their mistakes. One is to introduce a legislation to amend the relevant provision of AC 21 or better yet the agency process the concurrently filed I-140 petitions within 180 days so that the I-140 can be ported after passage of 180 days of I-485 filing. We realize the predicament of the agency to accept the concept of I-140 portability when I-140 has yet to be adjudicated. When there is no approved I-140 petition, at least theoretically, there is no I-140 to be ported.
Unfortunately, the agency has been moving completely opposite direction when it announced concurrent adjudication of I-140/I-485. Since the announcement, the concurrently filed I-140 has been held hostage assumedly in order for the agency to adjudicate I-140 and I-485 concurrently. The backlog of I-485 is not something which the agency can achieve in the near future, not probably until September 30, 2006. We cannot tolerate the AC 21 legislation remained beaten and bruised so hard by the agency's failure to coordinate its action with the spirit and intent of the AC 21 legislation. It is not impossible task for the agency to correct its mistakes and reconcile the conflicts: Agengy should set a goal of adjudicating the concurrently filed I-140 petition within 180 days and adjudication of I-140 petition for the concurrently filed cases should not be held hostage to implement its concurrent adjudication of concurrently filed I-140 and I-485. The agency should never betray the legislative intent of a law, AC 21 in the instant situation, by blocking implementation of the legislative intent through a circumbent action to lay a road block to the I-140 portability and change of employement for the I-485 filers after 180 days.
AILA's Comment on DOL's Backlog Reduction Regulation- Part1
American Immigration Lawyers Association
________________________________________________
918 F Street, N.W. Washington, D.C. 20004 (202) 216-2400
August 19, 2004
Assistant Secretary for Employment and Training Administration
USDOL
200 Constitution Avenue, NW
Room C-4312
Washington DC 20210
Attention: William Carlson
Chief, Division of Foreign Labor Certification
Via email: blrcomments@dol.gov
Re: RIN 1205-AB37; Comments to Interim Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Backlog Reduction, 69 Fed. Reg. 43715 (7/21/04)
Dear Mr. Carlson:
The American Immigration Lawyers Association (AILA) submits this comment in response to the interim final rule published July 21, 2004 regarding the establishment of centralized processing centers for the purpose of reducing existing backlogs in permanent alien labor certification applications.
AILA is a voluntary bar association of more than 8,600 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's mission includes the advancement of the law pertaining to immigration and naturalization and the facilitation of justice in the field. AILA's members are well acquainted with the labor certification process, having significant experience representing and educating employers who have need of essential international personnel and the employees who meet those needs. The members of our association represent large and small businesses, academic institutions, research facilities and governmental entities that employ foreign nationals as well as U.S. workers. AILA is thus uniquely qualified to comment on DOL's proposed rule.
The Backlog Reduction Concept
AILA commends the Department for its commitment to implement a workable plan to reduce the national backlog of approximately 300,000 applications for alien labor certification. By expressly providing for the use of centralized processing centers to perform the functions of both the SWAs and the regional offices, USDOL hopes "to achieve efficiencies and economies of scale" and, at the same time, achieve a greater consistency in the processing of these applications and in the legal standards applied to these applications.
AILA wishes to emphasize its willingness to work with USDOL on the program's implementation, particularly in connection with identifying priorities and rolling out the program in accordance with stated goals.
Approaching Backlog Reduction
AILA has a number of questions about the new centralized processing centers and how applications will be processed at the centers - - particularly the manner in which the centers will process the numerous applications that will be received from the state offices (SWAs) and the regional offices of USDOL. Our concerns are in the areas of customer service, staff training, application processing, center operations, and selection of applications for processing. Central among these concerns is the fundamental fairness of the methodology used to select those applications to be processed at the centers.
A great part of customer service involves managing the expectations of users of the system and making users aware of the process. In this way, the user may rely on that knowledge to approach the process with confidence and authority. In the first instance, this means that employers and their representatives must know whether their application was selected for centralized processing and when the application was transferred to a centralized processing center. For this reason, employers - - and, where they are represented by counsel, their attorneys - - must immediately be given notice of an application's transfer from a SWA or regional office to a centralized processing center. Such notice should be provided by the transferring office at the time of the transfer or by the centralized processing center immediately on receipt of the application for processing.
Additionally, DOL should make its best efforts to make information available to users that explains the anticipated operations and staffing levels of the centralized processing centers. For example:
What kind of staffing will the facility have? We know there will be some combination of a USDOL regional office presence with the contractor's staff. How many individuals will be staffing the facility? What will their functions be? Will they work in teams, product lines, etc? Will certain groups handle only RIR applications? Will others handle only advertising?
How will staff members be assigned cases?
Will they have specific case production goals per day, week, month?
Will there be telephonic access by customers to staff members who are working on particular cases?
Will there be access to supervisory personnel by customers when issues arise?
Of critical importance will be staff training. The most pressing unanswered questions include how staff training will be accomplished, who will be doing the training, who will be developing training materials, and how long a training program is contemplated to last. The Labor Certification process has always had it complexities, and the practice has become even more complicated in recent years as we must now understand the legal framework connecting not only the DOL regulations and the Technical Assistance Guide, but also various General Administration Letters and Training and Employment Guidance Letters, decisions of the Board of Alien Labor Certification Appeals, national office guidance, as well as varying interpretations of the once ten, and now six, certifying officers.
Ordering Backlog Reduction
Having experienced the significant hardships created for employers and employees by the ever-increasing delays in the processing of labor certification applications, we are all faced with the extremely difficult issue of determining the methodology for the identification of applications to be forwarded to the centralized processing centers. Because the regulation leaves unanswered the question as to which applications will be selected for centralized processing, a fair and just way must be found to offer relief to those who have been most adversely affected by the extreme delays.
With respect to variations of processing times, no methodology will completely eliminate the unfairness that marks current labor certification processing. But whatever methodology is used, the oldest cases should be processed first - - regardless of location in a SWA or regional office - - without compromising the viability or timeliness of the RIR and Special Handling programs as they currently function. The Department should strive for a "first in, first out" approach to backlog reduction within the outline of the priorities regarding types of cases already established through guidance and practice. Assuming the SWAs and the regions will continue processing applications, it is inevitable that disparities in processing times will result from the varying speeds with which all of the concerned offices are able to process those applications in their remaining caseloads. Additionally, continued funding of the SWAs and regional offices (or lack of funding for these offices) will undoubtedly impact the ability of these offices to continue to process those applications that remain. By following the date order to the closest extent possible, the affected community can maintain a reasonable expectation that the most egregious backlogs will be addressed first.
A further issue is the need for equitable application of some standard criteria to these applications, which may have been filed at any one of the more than fifty SWAs at any time during a five-year period. The standards applied to labor certification applications are deceptively simple: the regulations call for certification once an employer has proven that there are no US workers able, willing, and qualified for the position. However, the steps an employer must take to make that showing have changed significantly over the years that are now marked by thousands of pending applications. The centralized processing centers may be considering applications filed under any number of interpretive memos and guidance letters-the "Norris memo", the "Ziegler memos", the "Carlson memo," RIR guidelines, non-RIR standards, GALs, and TEGLs. It is almost impossible to apply the standard that was in place at the time of filing to many of the applications that will be considered by the centralized processing center. And yet some equitable standard that will involve examining the extent and good faith of the employer's effort to recruit US workers must be applied. Employers should not be penalized by adverse action on their applications at the centralized processing centers in situations where the employers have followed the policies of their regional certifying officer. While future goals for the processing of permanent applications may offer opportunities for improved consistency throughout the United States, it is important that DOL recognizes employers' reliance on regional practice.
American Immigration Lawyers Association
________________________________________________
918 F Street, N.W. Washington, D.C. 20004 (202) 216-2400
August 19, 2004
Assistant Secretary for Employment and Training Administration
USDOL
200 Constitution Avenue, NW
Room C-4312
Washington DC 20210
Attention: William Carlson
Chief, Division of Foreign Labor Certification
Via email: blrcomments@dol.gov
Re: RIN 1205-AB37; Comments to Interim Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Backlog Reduction, 69 Fed. Reg. 43715 (7/21/04)
Dear Mr. Carlson:
The American Immigration Lawyers Association (AILA) submits this comment in response to the interim final rule published July 21, 2004 regarding the establishment of centralized processing centers for the purpose of reducing existing backlogs in permanent alien labor certification applications.
AILA is a voluntary bar association of more than 8,600 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's mission includes the advancement of the law pertaining to immigration and naturalization and the facilitation of justice in the field. AILA's members are well acquainted with the labor certification process, having significant experience representing and educating employers who have need of essential international personnel and the employees who meet those needs. The members of our association represent large and small businesses, academic institutions, research facilities and governmental entities that employ foreign nationals as well as U.S. workers. AILA is thus uniquely qualified to comment on DOL's proposed rule.
The Backlog Reduction Concept
AILA commends the Department for its commitment to implement a workable plan to reduce the national backlog of approximately 300,000 applications for alien labor certification. By expressly providing for the use of centralized processing centers to perform the functions of both the SWAs and the regional offices, USDOL hopes "to achieve efficiencies and economies of scale" and, at the same time, achieve a greater consistency in the processing of these applications and in the legal standards applied to these applications.
AILA wishes to emphasize its willingness to work with USDOL on the program's implementation, particularly in connection with identifying priorities and rolling out the program in accordance with stated goals.
Approaching Backlog Reduction
AILA has a number of questions about the new centralized processing centers and how applications will be processed at the centers - - particularly the manner in which the centers will process the numerous applications that will be received from the state offices (SWAs) and the regional offices of USDOL. Our concerns are in the areas of customer service, staff training, application processing, center operations, and selection of applications for processing. Central among these concerns is the fundamental fairness of the methodology used to select those applications to be processed at the centers.
A great part of customer service involves managing the expectations of users of the system and making users aware of the process. In this way, the user may rely on that knowledge to approach the process with confidence and authority. In the first instance, this means that employers and their representatives must know whether their application was selected for centralized processing and when the application was transferred to a centralized processing center. For this reason, employers - - and, where they are represented by counsel, their attorneys - - must immediately be given notice of an application's transfer from a SWA or regional office to a centralized processing center. Such notice should be provided by the transferring office at the time of the transfer or by the centralized processing center immediately on receipt of the application for processing.
Additionally, DOL should make its best efforts to make information available to users that explains the anticipated operations and staffing levels of the centralized processing centers. For example:
What kind of staffing will the facility have? We know there will be some combination of a USDOL regional office presence with the contractor's staff. How many individuals will be staffing the facility? What will their functions be? Will they work in teams, product lines, etc? Will certain groups handle only RIR applications? Will others handle only advertising?
How will staff members be assigned cases?
Will they have specific case production goals per day, week, month?
Will there be telephonic access by customers to staff members who are working on particular cases?
Will there be access to supervisory personnel by customers when issues arise?
Of critical importance will be staff training. The most pressing unanswered questions include how staff training will be accomplished, who will be doing the training, who will be developing training materials, and how long a training program is contemplated to last. The Labor Certification process has always had it complexities, and the practice has become even more complicated in recent years as we must now understand the legal framework connecting not only the DOL regulations and the Technical Assistance Guide, but also various General Administration Letters and Training and Employment Guidance Letters, decisions of the Board of Alien Labor Certification Appeals, national office guidance, as well as varying interpretations of the once ten, and now six, certifying officers.
Ordering Backlog Reduction
Having experienced the significant hardships created for employers and employees by the ever-increasing delays in the processing of labor certification applications, we are all faced with the extremely difficult issue of determining the methodology for the identification of applications to be forwarded to the centralized processing centers. Because the regulation leaves unanswered the question as to which applications will be selected for centralized processing, a fair and just way must be found to offer relief to those who have been most adversely affected by the extreme delays.
With respect to variations of processing times, no methodology will completely eliminate the unfairness that marks current labor certification processing. But whatever methodology is used, the oldest cases should be processed first - - regardless of location in a SWA or regional office - - without compromising the viability or timeliness of the RIR and Special Handling programs as they currently function. The Department should strive for a "first in, first out" approach to backlog reduction within the outline of the priorities regarding types of cases already established through guidance and practice. Assuming the SWAs and the regions will continue processing applications, it is inevitable that disparities in processing times will result from the varying speeds with which all of the concerned offices are able to process those applications in their remaining caseloads. Additionally, continued funding of the SWAs and regional offices (or lack of funding for these offices) will undoubtedly impact the ability of these offices to continue to process those applications that remain. By following the date order to the closest extent possible, the affected community can maintain a reasonable expectation that the most egregious backlogs will be addressed first.
A further issue is the need for equitable application of some standard criteria to these applications, which may have been filed at any one of the more than fifty SWAs at any time during a five-year period. The standards applied to labor certification applications are deceptively simple: the regulations call for certification once an employer has proven that there are no US workers able, willing, and qualified for the position. However, the steps an employer must take to make that showing have changed significantly over the years that are now marked by thousands of pending applications. The centralized processing centers may be considering applications filed under any number of interpretive memos and guidance letters-the "Norris memo", the "Ziegler memos", the "Carlson memo," RIR guidelines, non-RIR standards, GALs, and TEGLs. It is almost impossible to apply the standard that was in place at the time of filing to many of the applications that will be considered by the centralized processing center. And yet some equitable standard that will involve examining the extent and good faith of the employer's effort to recruit US workers must be applied. Employers should not be penalized by adverse action on their applications at the centralized processing centers in situations where the employers have followed the policies of their regional certifying officer. While future goals for the processing of permanent applications may offer opportunities for improved consistency throughout the United States, it is important that DOL recognizes employers' reliance on regional practice.
AILA's Comment on DOL's Backlog Reduction Regulation- Part2
Impact on Immigration
AILA also notes that the backlog reduction effort may have a tremendous adverse impact on the annual availability of employment-based visa numbers. USDOL correctly notes that much of its backlog is attributable to filings of applications for labor certification generated by the imposition of a sunset date on Section 245(i) of the INA, which caused a significant increase in filings on or near April 30, 2001. The "bubble" of the estimated 236,000 applications filed on or near April 30, 2001, as they are processed to certification, will create a substantial number of workers, in particular skilled and unskilled workers, who will be moving through the next stages of permanent residence processing. As these workers become eligible to file adjustment of status applications concurrently with their immigrant visa petitions, their introduction to the CIS rosters will seriously strain visa number availability in the employment-based categories and, at the same time, add an enormous workload to CIS's already overburdened system.
AILA, having worked closely with both agencies on their processing issues, commends the two agencies for working together on this issue to ensure that these cases do not have the combined effect of crippling both the backlog reduction effort and the employment-based immigrant product line at CIS. It is our hope that the two agencies will continue to work together and apply available resources to this effort.
In conclusion, we ask the USDOL to continue to work closely with those most affected by the backlogs as the agency defines and refines its approaches and processes for backlog reduction. The use of centralized processing centers may prove to be an important tool in the backlog reduction effort and we hope it can be used efficiently and effectively.
Sincerely,
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Impact on Immigration
AILA also notes that the backlog reduction effort may have a tremendous adverse impact on the annual availability of employment-based visa numbers. USDOL correctly notes that much of its backlog is attributable to filings of applications for labor certification generated by the imposition of a sunset date on Section 245(i) of the INA, which caused a significant increase in filings on or near April 30, 2001. The "bubble" of the estimated 236,000 applications filed on or near April 30, 2001, as they are processed to certification, will create a substantial number of workers, in particular skilled and unskilled workers, who will be moving through the next stages of permanent residence processing. As these workers become eligible to file adjustment of status applications concurrently with their immigrant visa petitions, their introduction to the CIS rosters will seriously strain visa number availability in the employment-based categories and, at the same time, add an enormous workload to CIS's already overburdened system.
AILA, having worked closely with both agencies on their processing issues, commends the two agencies for working together on this issue to ensure that these cases do not have the combined effect of crippling both the backlog reduction effort and the employment-based immigrant product line at CIS. It is our hope that the two agencies will continue to work together and apply available resources to this effort.
In conclusion, we ask the USDOL to continue to work closely with those most affected by the backlogs as the agency defines and refines its approaches and processes for backlog reduction. The use of centralized processing centers may prove to be an important tool in the backlog reduction effort and we hope it can be used efficiently and effectively.
Sincerely,
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
yours_sincerely
Registered Users (C)
Confirmation of SWA processing 03/29/02 atleast
Hey guys,
My LC was filed on 03/29/02 and my lawyer called me up to ask for some previous work-ex certificates. It must be an NOF I guess but I just wanted to confirm for you guys that they have started processing atleast my date. I'll try to put up more info once I meet my lawyer on Monday.
Thanks for the tons of valuable info you guys put on the site.
Regards.
Hey guys,
My LC was filed on 03/29/02 and my lawyer called me up to ask for some previous work-ex certificates. It must be an NOF I guess but I just wanted to confirm for you guys that they have started processing atleast my date. I'll try to put up more info once I meet my lawyer on Monday.
Thanks for the tons of valuable info you guys put on the site.
Regards.
- Status