Philadelphia Regional DOL Tracker - Old (Archived on 09/23/2004)
- Thread starter ramss
- Start date
- Status
Is it weird? Shall I ask my lawyer to check?
Hi, Bengao and Stueym, and other guys here,
Could you please kindly provide your inputs on my situation here?
My LC was transferred to Philly DOL in May, so was my collegue's, he holds the same position with mine and both of our LC were transferred to Philly on May 20. However, he got a receipt card from DOL one month ago (in care of our lawyer who mailed it to him) saying that his case was received by Philly on May 24, and a case # and DOT # were assigned to him. However, I still have not received anything up to now. I checked the Philly AVM last night by using the company phone number in my LC forms and did locate a case, which is, obviously, my collegue's, because there is no other cases filed under this phone number when I tried to locate mine, there seems only one case filed there with my company phone number.
I am a lot worried because I do not see why my collegue can get his receipt so soon while mine is so much behind or delayed. Will it get lost?
My lawyer is a greedy one and she charges extra money for a search and does not garantee the timing of her search either. Do you guys think it worthwhile to pay her for a search with Philly? Or is there anyway I can find it out by myself.
Thanks a lot for your inputs. Looking forward to hearing from all of you.
Hi, Bengao and Stueym, and other guys here,
Could you please kindly provide your inputs on my situation here?
My LC was transferred to Philly DOL in May, so was my collegue's, he holds the same position with mine and both of our LC were transferred to Philly on May 20. However, he got a receipt card from DOL one month ago (in care of our lawyer who mailed it to him) saying that his case was received by Philly on May 24, and a case # and DOT # were assigned to him. However, I still have not received anything up to now. I checked the Philly AVM last night by using the company phone number in my LC forms and did locate a case, which is, obviously, my collegue's, because there is no other cases filed under this phone number when I tried to locate mine, there seems only one case filed there with my company phone number.
I am a lot worried because I do not see why my collegue can get his receipt so soon while mine is so much behind or delayed. Will it get lost?
My lawyer is a greedy one and she charges extra money for a search and does not garantee the timing of her search either. Do you guys think it worthwhile to pay her for a search with Philly? Or is there anyway I can find it out by myself.
Thanks a lot for your inputs. Looking forward to hearing from all of you.
bengao said:
Jiangnan....It does seem weird that there is is only one case listed for your employer's phone number. However nothing about this whole process is straightforward. AVM is not infallible. The database is screwy and full of anomalies. Through the bulleting board here I know of people who have had notification of their LC approval and yet still have a received status on AVM months after approval. I have also heard of other folks who don';t see their details go on AVM for several months. If your lawyer definitely got email notification of your state approval then give it until Aug then push her for an explanation based on these facts and what AVM is providing.
Sadly even if she enquiries it will only be useful if they have misplaced your case and it will not speed anything up. The thing I have learned through my 15 months of waiting is that the more you learn about how messed up this process is the more frustrating it is to try and use the information sources as you expect them to be logical and reliable and they are most definitely not!!
Good luck.
Stueym
Sadly even if she enquiries it will only be useful if they have misplaced your case and it will not speed anything up. The thing I have learned through my 15 months of waiting is that the more you learn about how messed up this process is the more frustrating it is to try and use the information sources as you expect them to be logical and reliable and they are most definitely not!!
Good luck.
Stueym
gc_aspirant2003
New Member
Hi GCAPPLY04
I applied for my Non RIR labor from phily in Mar 2002. My employer told me that it will take long time to clear that labor. In April 2003, he started advertisements for RIR.
Finally, I withdrew my Non RIR application and applied for RIR in October 2003.
It went to DOL in Jan 2004. I got an NOF in Feb 2004. My employer took one month extension and replied to NOF in April 2004 (During this period he set up a full fledged office in phily and processed payroll). I came to know from AVM in July 1st week that my labor was denied in Jun 2004.
Now I think that if I had not withdrawn my Non RIR, probably my hopes could have still been alive.
gc_aspirant2003
I applied for my Non RIR labor from phily in Mar 2002. My employer told me that it will take long time to clear that labor. In April 2003, he started advertisements for RIR.
Finally, I withdrew my Non RIR application and applied for RIR in October 2003.
It went to DOL in Jan 2004. I got an NOF in Feb 2004. My employer took one month extension and replied to NOF in April 2004 (During this period he set up a full fledged office in phily and processed payroll). I came to know from AVM in July 1st week that my labor was denied in Jun 2004.
Now I think that if I had not withdrawn my Non RIR, probably my hopes could have still been alive.
gc_aspirant2003
GCApply04 said:
Stueym,
Thank you so much for your reply. But it seems really weired that not only the AVM system does not list my case, but the lawyer has not received any receipt for me from DOL, either, while my collegue got both of them. I guess I would rather spend some extra money next week and ask her for a search in DOL. If it is misplaced or lost, I had better get it straightened out as soon as possible.
Both of my collegue and I have received a notification from our state labor dept., telling us that our cases have been transferred to Philly on May 20.
Thank you so much for your reply. But it seems really weired that not only the AVM system does not list my case, but the lawyer has not received any receipt for me from DOL, either, while my collegue got both of them. I guess I would rather spend some extra money next week and ask her for a search in DOL. If it is misplaced or lost, I had better get it straightened out as soon as possible.
Both of my collegue and I have received a notification from our state labor dept., telling us that our cases have been transferred to Philly on May 20.
stueym said:
My lawyer didn't receive anything either. But I found my case in the AVM. I think it won't be any problem for your case, but GC is much important for us, if I were you, I would like to double check it, since couple months delay in the filing may let you wait half year longer. Good luck to you!
jiangnan said:
Last edited by a moderator:
Labor certification delay.
Permanent Labor Certification Backlog Reduction Regulation: This regulation, after the 90-day review by the OMB, was cleared by the OMB quite sometime back, but the agency (U.S. Department of Labor) is delaying release of this regulation for the unknown reasons. Reportedly, the Directors of the Backlog Reduction Centers have been offered the jobs and the contractors have been selected, but the rule-making process that specifies the procedures, standards, and qualification has yet to be completed. No one knows why.
PERM Final Regulation for Reengineered Labor Certification System: There was practically no other reform which frustrated the immigrant community as much as this reform. It took over four years and is still in limbo. After all the hurdles, the agency finally forwarded the final rule to the OMB on February 23, 2004, but at the last minute of the 90-day review period, the agency requested the OMB to extend the approval of the regulation for the reasons that the DOL faced some different views from other related agencies, assumedly the department of state and the DHS. The OMB thus extended its review beyond May 21, 2004. Without revision, the OMB should have completed the regulation review within ten days after that. But apparently, the DOL revised the regulation to accomodate the views and comments from the related agencies, allowing more time to the OMB to complete the review. Extended review has already taken approximately two months and there is still no light at the end of the tunnel.
The 9/11 has changed our lives so many ways, but one of its impacts involves "secrecy" crept into the government process for the reasons of homeland security. There are no longer open dialogues in the decision making process between the government agencies and their constituents which were the "norm" before 9/11. Some stake-holder organizations also participate in the secretive process withholding some agency information to the insiders only for fear of retaliation by the agencies to cease leaking the information to the stake-holders. All blames should go to the 9/11 incident, terrorism, and the different world we are living in now.
Thank you
orissa
Permanent Labor Certification Backlog Reduction Regulation: This regulation, after the 90-day review by the OMB, was cleared by the OMB quite sometime back, but the agency (U.S. Department of Labor) is delaying release of this regulation for the unknown reasons. Reportedly, the Directors of the Backlog Reduction Centers have been offered the jobs and the contractors have been selected, but the rule-making process that specifies the procedures, standards, and qualification has yet to be completed. No one knows why.
PERM Final Regulation for Reengineered Labor Certification System: There was practically no other reform which frustrated the immigrant community as much as this reform. It took over four years and is still in limbo. After all the hurdles, the agency finally forwarded the final rule to the OMB on February 23, 2004, but at the last minute of the 90-day review period, the agency requested the OMB to extend the approval of the regulation for the reasons that the DOL faced some different views from other related agencies, assumedly the department of state and the DHS. The OMB thus extended its review beyond May 21, 2004. Without revision, the OMB should have completed the regulation review within ten days after that. But apparently, the DOL revised the regulation to accomodate the views and comments from the related agencies, allowing more time to the OMB to complete the review. Extended review has already taken approximately two months and there is still no light at the end of the tunnel.
The 9/11 has changed our lives so many ways, but one of its impacts involves "secrecy" crept into the government process for the reasons of homeland security. There are no longer open dialogues in the decision making process between the government agencies and their constituents which were the "norm" before 9/11. Some stake-holder organizations also participate in the secretive process withholding some agency information to the insiders only for fear of retaliation by the agencies to cease leaking the information to the stake-holders. All blames should go to the 9/11 incident, terrorism, and the different world we are living in now.
Thank you
orissa
orissa said:
Incorrect. The ding-dong regarding PERM has been going on since 2000, ditto with the backlog reduction plans. A simple google search will bring up tons of documents and links from 2000 onwards on these two topics.
All this was much before 9/11. 9/11 did not change anything per se at least where labor certificates are concerned. It just provided a new excuse. And a lame one at that too, since the link between labor certification and security is tenuous at best.
07/20/2004: Labor Certification Backlog Reduction Regulation Release Imminent, 07/21/
AILA has learned that the DOL will release this regulation probably on July 21, 2004. AILA has also obtained a copy of the regulation which will be released as the Interim Final Regulation. The regulation will be implemented in 30 days from the date of publication in the federal register. The regulation is very short and does not go into the details. The skeleton of the backlog reduction are as follows:
The Chief of Foreign Labor Certification, William Carlson, is designated as the "National Certifying Officer." This Officer has two authorities under the regulation:
Determination of which existing cases at the state offices and the regional certifying officers offices should be transferred to the national reduction processing centers, involving obviously the decision to transfer when, how, in what sequences, etc. The regulation provides that the details on this issue be stipulated and released in the form of "Directives."
National Certifying Officer will perform adjudication of certain cases which the processing centers deemed necessary because of the issues involved. These cases will be handled and decided by the National Certifying Officer.
The backlog reduction centers will perform the jobs of the current state offices and the regional certifying officers offices for the cases which are transferred to the backlog reduction center. In this regard, the backlog reduction center changes from the current two-tier (state-regional) system to one-tier system just like the upcoming PERM program operation.
The details have yet to be developed and announced by the DOL as to how this regulation will be actually implemented. It is, however, important to learn that the backlog reduction job will go into operation in a month or so from now. Good news, indeed.
Another 30 days waiting to see so called big Elephent coming and on the way.
uffffff....!
orissa
AILA has learned that the DOL will release this regulation probably on July 21, 2004. AILA has also obtained a copy of the regulation which will be released as the Interim Final Regulation. The regulation will be implemented in 30 days from the date of publication in the federal register. The regulation is very short and does not go into the details. The skeleton of the backlog reduction are as follows:
The Chief of Foreign Labor Certification, William Carlson, is designated as the "National Certifying Officer." This Officer has two authorities under the regulation:
Determination of which existing cases at the state offices and the regional certifying officers offices should be transferred to the national reduction processing centers, involving obviously the decision to transfer when, how, in what sequences, etc. The regulation provides that the details on this issue be stipulated and released in the form of "Directives."
National Certifying Officer will perform adjudication of certain cases which the processing centers deemed necessary because of the issues involved. These cases will be handled and decided by the National Certifying Officer.
The backlog reduction centers will perform the jobs of the current state offices and the regional certifying officers offices for the cases which are transferred to the backlog reduction center. In this regard, the backlog reduction center changes from the current two-tier (state-regional) system to one-tier system just like the upcoming PERM program operation.
The details have yet to be developed and announced by the DOL as to how this regulation will be actually implemented. It is, however, important to learn that the backlog reduction job will go into operation in a month or so from now. Good news, indeed.
Another 30 days waiting to see so called big Elephent coming and on the way.
uffffff....!
orissa
PainfulGC123
Registered Users (C)
News Flash from the The Law Office of Sheela Murthy
News Flash from the The Law Office of Sheela Murthy
July 20, 2004 the U.S. Department of Labor issued an advance copy of the long-awaited labor certification backlog reduction regulation. Expected to be published in the Federal Register on July 21, 2004, the regulation should be effective August 21, 2004, 30 days from publication. Changes will allow for the transfer of pending labor certification cases to centralized processing center/s to clear significant backlogs in labor certification cases.
Previous articles about backlog reduction centers to be set up at Dallas, TX and Philadelphia, PA can be found on MurthyDotCom. More on this to follow in the July 23 edition of the MurthyBulletin!
Source: http://www.murthy.com
News Flash from the The Law Office of Sheela Murthy
July 20, 2004 the U.S. Department of Labor issued an advance copy of the long-awaited labor certification backlog reduction regulation. Expected to be published in the Federal Register on July 21, 2004, the regulation should be effective August 21, 2004, 30 days from publication. Changes will allow for the transfer of pending labor certification cases to centralized processing center/s to clear significant backlogs in labor certification cases.
Previous articles about backlog reduction centers to be set up at Dallas, TX and Philadelphia, PA can be found on MurthyDotCom. More on this to follow in the July 23 edition of the MurthyBulletin!
Source: http://www.murthy.com
07/21/2004: Labor Certification Backlog Reduction Regulation Published Today-Part 1
[Federal Register: July 21, 2004 (Volume 69, Number 139)]
[Rules and Regulations]
[Page 43715-43719]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy04-16]
[[Page 43715]]
-----------------------------------------------------------------------
Part V
Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
-----------------------------------------------------------------------
20 CFR Part 656
Labor Certification for the Permanent Employment of Aliens in the
United States; Backlog Reduction; Interim Final Rule
[[Page 43716]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 656
RIN 1205-AB37
Labor Certification for the Permanent Employment of Aliens in the
United States; Backlog Reduction
AGENCY: Employment and Training Administration, Labor.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department or DOL) is issuing this interim final
rule to address an existing backlog in pending applications for labor
certification for the permanent employment of aliens in the United
States. This amendment to the regulations governing labor certification
applications for permanent employment will allow the National
Certifying Officer to transfer to a centralized ETA processing
center(s) applications now awaiting processing by State Workforce
Agencies (SWAs) or ETA Regional Offices. This interim final rule does
not affect the pending proposal to streamline procedures for permanent
labor certification under 20 CFR part 656, which was published in the
Federal Register of May 6, 2002, and which is expected to be finalized
in 2004. This interim final rule affects only applications filed under
existing regulations, while the streamlined certification regulation
will govern processing of new applications filed after that regulation
takes effect.
DATES: This interim final rule is effective August 20, 2004. Interested
persons are invited to submit written comments on this interim final
rule. To ensure consideration, comments must be received on or before
August 20, 2004.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB37, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
E-mail: Comments may be submitted by e-mail to
blrcomments@dol.gov. Include RIN 1205-AB37 in the subject line of the
message.
Mail: Submit written comments to the Assistant Secretary
for Employment and Training Administration, U.S. Department of Labor,
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210,
Attention: William Carlson, Chief, Division of Foreign Labor
Certification. Because of security measures, mail directed to
Washington, DC is sometimes delayed. We will only consider comments
postmarked by the U.S. Postal Service or other delivery service on or
before the deadline for comments.
Instructions: All submissions received must include the RIN 1205-
AB37 for this rulemaking. Receipt of submissions, whether by U.S. mail
or e-mail will not be acknowledged. Because DOL continues to experience
delays in receiving postal mail in the Washington, DC area, commenters
are encouraged to submit any comments by mail early.
Comments will be available for public inspection during normal
business hours at the address listed above for mailed comments. Persons
who need assistance to review the comments will be provided with
appropriate aids such as readers or print magnifiers. Copies of this
interim final rule may be obtained in alternative formats (e.g., large
print, Braille, audiotape, or disk) upon request. To schedule an
appointment to review the comments and/or to obtain the proposed rule
in an alternative format, contact the Division of Foreign Labor
Certification at 202-693-3010 (this is not a toll-free number).
FOR FURTHER INFORMATION CONTACT: Contact Denis Gruskin, Senior
Specialist, Division of Foreign Labor Certification, Employment and
Training Administration, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210; Telephone: (202) 693-2953 (this is not a toll-
free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Statutory Standard
Before the United States Citizenship and Immigration Services (CIS)
of the Department of Homeland Security \1\ may approve petition
requests and the Department of State may issue visas and admit certain
immigrant aliens to work permanently in the United States, the
Secretary of Labor first must certify to the Secretary of State and to
the Secretary of Homeland Security that:
---------------------------------------------------------------------------
\1\ See 6 U.S.C. 236(b), 552(d), and 557.
---------------------------------------------------------------------------
(a) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of the alien will not adversely affect the wages
and working conditions of similarly employed United States workers. See
Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(5)(A).
If the Secretary of Labor, through ETA, determines that there are
no able, willing, qualified, and available U.S. workers and that
employment of the alien will not adversely affect the wages and working
conditions of similarly employed U.S. workers, DOL so certifies to CIS
and to the Department of State by issuing a permanent alien labor
certification.
If DOL cannot make one or both of the above findings, the
application for permanent alien employment certification is denied.
II. Current Department of Labor Regulations
DOL has promulgated regulations, at 20 CFR part 656, governing the
labor certification process for the permanent employment of immigrant
aliens in the United States. Part 656 was promulgated under section
212(a)(5)(A) of the INA. 8 U.S.C. 1182(a)(5)(A).
Part 656 sets forth the responsibilities of employers who desire to
employ immigrant aliens permanently in the United States. Under current
regulations, employers file an ``Application for Alien Employment
Certification'' with the State Workforce Agency (SWA) serving the area
of intended employment. The SWA is responsible for various processing
steps, including date stamping the application, calculating the
appropriate prevailing wage, and placing the job opening into the
state's employment recruitment system.
The current process for obtaining a labor certification requires
employers to actively recruit U.S. workers in good faith for a period
of at least 30 days for the job openings for which aliens are sought.
The employer's job requirements must conform to the regulatory
standards.
Job applicants either are referred directly to the employer or
their resumes are sent to the employer. The employer has 45 days to
report to the SWA the lawful job-related reasons for not hiring any
referred U.S. worker. If the employer hires a U.S. worker for the job
opening, the process stops at that point, unless the employer has more
than one opening, in which case the application may continue to be
processed. If, however, the SWA
[[Page 43717]]
believes that able, willing, and qualified U.S. workers are not
available to take the job, the application, together with the
documentation of the recruitment results and prevailing wage
information, is sent to the appropriate ETA Regional Office. There, it
is reviewed and a determination made as to whether to issue the labor
certification based upon the employer's compliance with program
regulations. If DOL/ETA determines that there is no able, willing,
qualified, and available U.S. worker, and that the employment of the
alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers, DOL/ETA so certifies to the CIS and
the Department of State by issuing a permanent labor certification. See
20 CFR part 656; see also section 212(a)(5)(A) of the INA, as amended.
On May 6, 2002, the Department published a Notice of Proposed
Rulemaking (NPRM) to substantially streamline part 656, which governs
the permanent labor certification program. The proposed streamlined
certification regulation, which is expected to be finalized in 2004,
will ``implement a new system for filing and processing'' permanent
labor certification applications. Among other things, State Workforce
Agencies will no longer receive or process applications as they do
under the current system, and employers will be required to conduct
recruitment before filing applications. The new processing system will
apply to all applications for permanent labor certifications filed on
or after the revised regulation's effective date.
[Federal Register: July 21, 2004 (Volume 69, Number 139)]
[Rules and Regulations]
[Page 43715-43719]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy04-16]
[[Page 43715]]
-----------------------------------------------------------------------
Part V
Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
-----------------------------------------------------------------------
20 CFR Part 656
Labor Certification for the Permanent Employment of Aliens in the
United States; Backlog Reduction; Interim Final Rule
[[Page 43716]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 656
RIN 1205-AB37
Labor Certification for the Permanent Employment of Aliens in the
United States; Backlog Reduction
AGENCY: Employment and Training Administration, Labor.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department or DOL) is issuing this interim final
rule to address an existing backlog in pending applications for labor
certification for the permanent employment of aliens in the United
States. This amendment to the regulations governing labor certification
applications for permanent employment will allow the National
Certifying Officer to transfer to a centralized ETA processing
center(s) applications now awaiting processing by State Workforce
Agencies (SWAs) or ETA Regional Offices. This interim final rule does
not affect the pending proposal to streamline procedures for permanent
labor certification under 20 CFR part 656, which was published in the
Federal Register of May 6, 2002, and which is expected to be finalized
in 2004. This interim final rule affects only applications filed under
existing regulations, while the streamlined certification regulation
will govern processing of new applications filed after that regulation
takes effect.
DATES: This interim final rule is effective August 20, 2004. Interested
persons are invited to submit written comments on this interim final
rule. To ensure consideration, comments must be received on or before
August 20, 2004.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB37, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
E-mail: Comments may be submitted by e-mail to
blrcomments@dol.gov. Include RIN 1205-AB37 in the subject line of the
message.
Mail: Submit written comments to the Assistant Secretary
for Employment and Training Administration, U.S. Department of Labor,
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210,
Attention: William Carlson, Chief, Division of Foreign Labor
Certification. Because of security measures, mail directed to
Washington, DC is sometimes delayed. We will only consider comments
postmarked by the U.S. Postal Service or other delivery service on or
before the deadline for comments.
Instructions: All submissions received must include the RIN 1205-
AB37 for this rulemaking. Receipt of submissions, whether by U.S. mail
or e-mail will not be acknowledged. Because DOL continues to experience
delays in receiving postal mail in the Washington, DC area, commenters
are encouraged to submit any comments by mail early.
Comments will be available for public inspection during normal
business hours at the address listed above for mailed comments. Persons
who need assistance to review the comments will be provided with
appropriate aids such as readers or print magnifiers. Copies of this
interim final rule may be obtained in alternative formats (e.g., large
print, Braille, audiotape, or disk) upon request. To schedule an
appointment to review the comments and/or to obtain the proposed rule
in an alternative format, contact the Division of Foreign Labor
Certification at 202-693-3010 (this is not a toll-free number).
FOR FURTHER INFORMATION CONTACT: Contact Denis Gruskin, Senior
Specialist, Division of Foreign Labor Certification, Employment and
Training Administration, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210; Telephone: (202) 693-2953 (this is not a toll-
free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Statutory Standard
Before the United States Citizenship and Immigration Services (CIS)
of the Department of Homeland Security \1\ may approve petition
requests and the Department of State may issue visas and admit certain
immigrant aliens to work permanently in the United States, the
Secretary of Labor first must certify to the Secretary of State and to
the Secretary of Homeland Security that:
---------------------------------------------------------------------------
\1\ See 6 U.S.C. 236(b), 552(d), and 557.
---------------------------------------------------------------------------
(a) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of the alien will not adversely affect the wages
and working conditions of similarly employed United States workers. See
Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(5)(A).
If the Secretary of Labor, through ETA, determines that there are
no able, willing, qualified, and available U.S. workers and that
employment of the alien will not adversely affect the wages and working
conditions of similarly employed U.S. workers, DOL so certifies to CIS
and to the Department of State by issuing a permanent alien labor
certification.
If DOL cannot make one or both of the above findings, the
application for permanent alien employment certification is denied.
II. Current Department of Labor Regulations
DOL has promulgated regulations, at 20 CFR part 656, governing the
labor certification process for the permanent employment of immigrant
aliens in the United States. Part 656 was promulgated under section
212(a)(5)(A) of the INA. 8 U.S.C. 1182(a)(5)(A).
Part 656 sets forth the responsibilities of employers who desire to
employ immigrant aliens permanently in the United States. Under current
regulations, employers file an ``Application for Alien Employment
Certification'' with the State Workforce Agency (SWA) serving the area
of intended employment. The SWA is responsible for various processing
steps, including date stamping the application, calculating the
appropriate prevailing wage, and placing the job opening into the
state's employment recruitment system.
The current process for obtaining a labor certification requires
employers to actively recruit U.S. workers in good faith for a period
of at least 30 days for the job openings for which aliens are sought.
The employer's job requirements must conform to the regulatory
standards.
Job applicants either are referred directly to the employer or
their resumes are sent to the employer. The employer has 45 days to
report to the SWA the lawful job-related reasons for not hiring any
referred U.S. worker. If the employer hires a U.S. worker for the job
opening, the process stops at that point, unless the employer has more
than one opening, in which case the application may continue to be
processed. If, however, the SWA
[[Page 43717]]
believes that able, willing, and qualified U.S. workers are not
available to take the job, the application, together with the
documentation of the recruitment results and prevailing wage
information, is sent to the appropriate ETA Regional Office. There, it
is reviewed and a determination made as to whether to issue the labor
certification based upon the employer's compliance with program
regulations. If DOL/ETA determines that there is no able, willing,
qualified, and available U.S. worker, and that the employment of the
alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers, DOL/ETA so certifies to the CIS and
the Department of State by issuing a permanent labor certification. See
20 CFR part 656; see also section 212(a)(5)(A) of the INA, as amended.
On May 6, 2002, the Department published a Notice of Proposed
Rulemaking (NPRM) to substantially streamline part 656, which governs
the permanent labor certification program. The proposed streamlined
certification regulation, which is expected to be finalized in 2004,
will ``implement a new system for filing and processing'' permanent
labor certification applications. Among other things, State Workforce
Agencies will no longer receive or process applications as they do
under the current system, and employers will be required to conduct
recruitment before filing applications. The new processing system will
apply to all applications for permanent labor certifications filed on
or after the revised regulation's effective date.
07/21/2004: Labor Certification Backlog Reduction Regulation Published Today-Part 2
The interim final rule in this document does not alter the separate
streamlined certification regulation, but rather is focused on
reduction of the backlog of labor certification applications filed
under existing regulations with State Workforce Agencies, as described
in the next section. The streamlined certification regulation, once
finalized, will stabilize the backlog volume, since applications will
no longer be filed with a SWA on or after that regulation's effective
date and streamlined procedures will govern.
III. Background
ETA's Permanent Labor Certification Program is currently
experiencing an enormous backlog in pending applications for permanent
employment of alien immigrants. This backlog largely stems from
amendments enacted in December 2000 to section 245(i) of the INA. The
amendments allow aliens who entered the United States without
inspection or who fall within certain statutory categories to adjust
their status to that of a lawful permanent resident if a labor
certification application was filed on their behalf with a SWA on or
before April 30, 2001. See 8 U.S.C. 1255(i)(1)(B)(ii). We estimate that
approximately 236,000 applications were filed to meet the deadline of
April 30, 2001, at a time when less than 100,000 applications were
filed in an entire year. At the start of April 2003, over 280,000
permanent labor certification applications were in the SWA processing
queues throughout the nation, with another 30,000 applications in the
various ETA Regional Office queues.
To address the backlog, ETA funded a study to identify strategic
options and estimate costs. The study recommended establishing
centralized processing centers to achieve the economies of scale
inherent in processing large numbers of applications in one location
and in consolidating the functions currently performed separately by
the SWAs and the ETA Regional Offices. Building upon this
recommendation, ETA initiated a pilot program testing the feasibility
of centralized processing, which indicated that substantial time and
economic savings could be achieved.
Accordingly, this interim final rule amends part 656 by adding a
new section 656.24a to provide that the National Certifying Officer
(Chief, Division of Foreign Labor Certification) has the discretion to
direct SWAs and ETA Regional Offices to transfer pending labor
certification applications to centralized processing centers for
completion of processing. The centralized processing centers will
perform the required functions of the SWAs and ETA Regional Certifying
Officers, consolidating steps now performed separately by the SWAs and
the ETA Regional Offices to achieve efficiencies and economies of
scale. The Chief will issue a directive to SWAs and the ETA Regional
Offices stating how pending applications are to be identified for
centralized processing, and where they are to be sent. The extent of
centralized processing and the speed with which the current backlog
will be reduced may vary based upon program priorities.
IV. Administrative Information
Executive Order 12866--Regulatory Planning and Review: We have
determined that this interim final rule is not an ``economically
significant regulatory action'' within the meaning of Executive Order
12866. The procedures for backlog reduction will not have an economic
impact of $100 million or more because they will not add to or change
requirements for employers applying for permanent labor certification,
but rather create a means for consolidated processing at centralized
locations. While it is not economically significant, the Office of
Management and Budget (OMB) reviewed this interim final rule because of
the novel legal and policy issues raised by this rulemaking.
Regulatory Flexibility Act: We have notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b),
that this interim final rule will not have a significant economic
impact on a substantial number of small entities.
The factual basis for that certification is as follows: The interim
final rule will affect only a portion of those employers whose
applications for permanent employment certification are among the
approximately 310,000 currently backlogged applications, or who file an
application prior to the effective date of the regulations streamlining
permanent labor certification. The interim final rule will not add to
or change paperwork requirements for employer applicants, including
small entities, but rather create a means for consolidated processing
at centralized locations. Consequently, the Department believes there
will be no additional economic burden on employer applicants, including
small entities within that group. However, even assuming some impact on
employers from the proposed changes, this impact will not fall ``on a
substantial number of small entities.'' As noted, the universe of
pending applications is approximately 310,000. Based on Department
experience, we estimate that about forty percent of permanent labor
certification applications are filed by employers who have submitted
multiple applications. Thus, the number of different employers
submitting applications is approximately 186,000 (310,000 x 60%). We do
not inquire about the size of employer applicants, however, the number
of small entities applying is certainly less than the applicant total
and significantly below the potential universe of small businesses to
which the program is open. Because applications come from employers in
all industry segments, we consider all small businesses as the
appropriate universe for comparison purposes. According to the Small
Business Administration's publication The Regulatory Flexibility Act--
An Implementation Guide for Federal Agencies, there were 22,900,000
small businesses in the United States in 2002.
The interim final rule in this document does not alter the separate
streamlined certification regulation, but rather is focused on
reduction of the backlog of labor certification applications filed
under existing regulations with State Workforce Agencies, as described
in the next section. The streamlined certification regulation, once
finalized, will stabilize the backlog volume, since applications will
no longer be filed with a SWA on or after that regulation's effective
date and streamlined procedures will govern.
III. Background
ETA's Permanent Labor Certification Program is currently
experiencing an enormous backlog in pending applications for permanent
employment of alien immigrants. This backlog largely stems from
amendments enacted in December 2000 to section 245(i) of the INA. The
amendments allow aliens who entered the United States without
inspection or who fall within certain statutory categories to adjust
their status to that of a lawful permanent resident if a labor
certification application was filed on their behalf with a SWA on or
before April 30, 2001. See 8 U.S.C. 1255(i)(1)(B)(ii). We estimate that
approximately 236,000 applications were filed to meet the deadline of
April 30, 2001, at a time when less than 100,000 applications were
filed in an entire year. At the start of April 2003, over 280,000
permanent labor certification applications were in the SWA processing
queues throughout the nation, with another 30,000 applications in the
various ETA Regional Office queues.
To address the backlog, ETA funded a study to identify strategic
options and estimate costs. The study recommended establishing
centralized processing centers to achieve the economies of scale
inherent in processing large numbers of applications in one location
and in consolidating the functions currently performed separately by
the SWAs and the ETA Regional Offices. Building upon this
recommendation, ETA initiated a pilot program testing the feasibility
of centralized processing, which indicated that substantial time and
economic savings could be achieved.
Accordingly, this interim final rule amends part 656 by adding a
new section 656.24a to provide that the National Certifying Officer
(Chief, Division of Foreign Labor Certification) has the discretion to
direct SWAs and ETA Regional Offices to transfer pending labor
certification applications to centralized processing centers for
completion of processing. The centralized processing centers will
perform the required functions of the SWAs and ETA Regional Certifying
Officers, consolidating steps now performed separately by the SWAs and
the ETA Regional Offices to achieve efficiencies and economies of
scale. The Chief will issue a directive to SWAs and the ETA Regional
Offices stating how pending applications are to be identified for
centralized processing, and where they are to be sent. The extent of
centralized processing and the speed with which the current backlog
will be reduced may vary based upon program priorities.
IV. Administrative Information
Executive Order 12866--Regulatory Planning and Review: We have
determined that this interim final rule is not an ``economically
significant regulatory action'' within the meaning of Executive Order
12866. The procedures for backlog reduction will not have an economic
impact of $100 million or more because they will not add to or change
requirements for employers applying for permanent labor certification,
but rather create a means for consolidated processing at centralized
locations. While it is not economically significant, the Office of
Management and Budget (OMB) reviewed this interim final rule because of
the novel legal and policy issues raised by this rulemaking.
Regulatory Flexibility Act: We have notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act (RFA) at 5 U.S.C. 605(b),
that this interim final rule will not have a significant economic
impact on a substantial number of small entities.
The factual basis for that certification is as follows: The interim
final rule will affect only a portion of those employers whose
applications for permanent employment certification are among the
approximately 310,000 currently backlogged applications, or who file an
application prior to the effective date of the regulations streamlining
permanent labor certification. The interim final rule will not add to
or change paperwork requirements for employer applicants, including
small entities, but rather create a means for consolidated processing
at centralized locations. Consequently, the Department believes there
will be no additional economic burden on employer applicants, including
small entities within that group. However, even assuming some impact on
employers from the proposed changes, this impact will not fall ``on a
substantial number of small entities.'' As noted, the universe of
pending applications is approximately 310,000. Based on Department
experience, we estimate that about forty percent of permanent labor
certification applications are filed by employers who have submitted
multiple applications. Thus, the number of different employers
submitting applications is approximately 186,000 (310,000 x 60%). We do
not inquire about the size of employer applicants, however, the number
of small entities applying is certainly less than the applicant total
and significantly below the potential universe of small businesses to
which the program is open. Because applications come from employers in
all industry segments, we consider all small businesses as the
appropriate universe for comparison purposes. According to the Small
Business Administration's publication The Regulatory Flexibility Act--
An Implementation Guide for Federal Agencies, there were 22,900,000
small businesses in the United States in 2002.
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