PERM Update
Highlights of PERM Meeting in Chicago - Jan 2005
The U.S. Department of Labor (DOL) held its first PERM training meeting in Chicago, Illinois on January 11, 2005. To ensure that we stay abreast of the latest information on PERM, we sent an attorney from The Law Office of Sheela Murthy, P.C. to the session. This valuable information is the latest available on backlog reduction and PERM. It should help MurthyDotCom and MurthyBulletin readers in making their plans.
Update on Backlog Elimination Centers
The meeting began with a Backlog Elimination Center (BEC) update. There are the two BECs in Philadelphia, PA and Dallas, TX, as well as two "satellite" backlog centers - New York, NY (with Boston, MA) and San Francisco, CA. The two satellites will stay open for approximately another year. The oldest cases from the regional offices are at the BECs. Open cases at the regions are not moving to the BECs. Each BEC has approximately 200 contract staff members. The federal staff moved to the BECs from the regional offices will make all final case decisions.
San Francisco had the largest volume of backlog cases, so 10,000 of their cases went to Dallas and 10,000 to Philadelphia. The DOL is using UPS for backlog shipments. The contract staff from Exceed Corporation is responsible for getting all of the cases moved to their proper locations. The current expectation is that there are an additional 200,000 cases from the states beyond those moved from the regions.
As of January 4, 2005, only 17 states had sent their backlogged cases that were due on December 31, 2004. This is approximately 24,000 cases. Larger states are slower because they have more cases to box.
Procedures at BECs
BEC operations have been making progress each day. There are many challenges because of the large volume of cases. There is a brand new software system that has glitches and a largely new staff that needs training. To date, they have sent approximately 26,000 "45-day letters." These are letters to potential employers essentially verifying whether or not the employer wishes to pursue the case. Of these, 11,000 had potentially unnecessary questions about the existence of the company because of the insufficient database that was in use. They now have other databases and they will continue to send out these 45-day letters. The DOL requests that the 11,000 letters also be answered, as this is more efficient than their having to send out revised letters.
When the BEC gets a case, it goes through data entry and then the 45-day letter is issued. When the response is received, the case is put into one of the 2 processing streams (RIR or Regular), and those streams are adjusted for FIFO (first-in / first-out order) on a routine basis. Information is in the process of being set up for a public system. Right now, the Boston and New York regional offices are the only locations with accurate information available to the public. The initial data entry that precedes issuance of the 45-day letter is under consideration for possibly being abbreviated so that the files may more quickly be identified as having arrived at the BECs. A national database is being implemented so that it will be possible to call one BEC and get information about the location of the file, regardless of which BEC has the file.
Efforts are currently focused on data entry. It does not appear that cases are being processed as yet. The next step will be to share the BEC software with New York / Boston and San Francisco, once more of the programmatic problems have been worked out.
The DOL expects backlog procedures to be fully defined by the PERM start date of March 28, 2005. Anything filed prior to PERM will be considered a part of the backlog. Backlog elimination is estimated to take approximately 24 to 30 months once PERM has begun. This, in part, depends upon the number of people re-filing under PERM.
Expect DOL Transitional Guidances
The DOL expects to release two more guidances on transitional procedures in the near future. The first will guide the states on procedures once PERM has been implemented. This is expected to be published in the next month. The second notice will outline which states will use the Atlanta National Processing Center (NPC) and which will use the Chicago NPC for PERM. Both guidances will appear in the Federal Register.
Temporary programs, like the H2B program, will move to Atlanta, GA and Chicago, IL so that BECs will be able to focus on backlogs. This transition has not been completed yet. DOL will issue guidance on handling non-PERM cases received after March 28, 2005 (postmarked before March 28, 2005, etc).
What Triggers an Audit under PERM?
Under PERM, there are certain programmatic "flags" that will trigger DOL case audits. Audits will be triggered by responses on the forms. The DOL is using technology to detect anything odd, down to whether the phone number provided for a company is a cell phone number.
Processing Timeframes under PERM
Most PERM cases are expected to be completed in 45 to 60 days, but this processing time will not apply to those cases that are submitted by mail. The system will assign a date to an eFiling automatically. Paper filings will be date stamped.
Previous RIR or Regular Cases Re-Filed as PERM
The DOL will be posting information on the conversion to PERM of cases previously filed under the regular LC or RIR programs. Re-filed applications may take longer to process than other PERM cases that are filed on the new ETA Form 9089. The time will depend upon how many of these are received and where the original case files are located. Most likely, they are going to have a relationship between the BEC database and the PERM database to use technology as much as possible to check whether the filings are identical - a requirement for retaining the original priority date. DOL expects that re-filing a case should still result in a faster labor certification processing than if the case is left at the BEC and not re-filed. With priority date retrogression preventing EB3 cases from reaching the I-485 stage, this faster processing may not result in any net gain in overall green card processing time for those nationals from India, mainland China, and the Philippines affected by the EB3 retrogression of dates. For a detailed analysis of this topic, see our January 21, 2005 MurthyBulletin article, PERM and EB3 Candidates - File Regular LC Now!, available on MurthyDotCom.
Employer Obligations Regarding Recruitment
If there is any doubt as to whether a case is for a professional job, the DOL recommends that the employers complete the professional recruitment. For all cases, the State Workforce Agency or SWA job order must be sent to the SWA, not just America's Job Bank.
If there are laid-off U.S. workers, an explanation as to why they are not qualified should be in the employer's recruitment report. The DOL thinks that recruitment reports are even more important under an attestation model. They do not want "the ink to be too wet" on a recruitment report if there is an audit. That is, it should be prepared at the time the recruitment occurs, not at the time of an audit. The DOL will also be checking whether the employer is aware that a case was filed for the particular employee. Thus it appears that there may be greater scrutiny by the DOL if an employer files on behalf of a future employee.
Deadlines for Responses to DOL
Under PERM, there is supposed to be a 30-day deadline for any information that the DOL requests. The DOL believes this is better than different deadlines for different types of requests. The DOL emphasized that 30 days for audit letters is only taking into account that someone may be out of town, but they expect the data to be readily available and sent in much earlier.
Prevailing Wages
The DOL is working with the Bureau of Labor Statistics (BLS) on the four prevailing wage levels required under the 2004 Omnibus Act and expect to have guidance and training available on this issue prior to March 8, 2005. As some of our readers may be aware, PERM requires the DOL to consider four levels of wages instead of the existing two levels. This has caused a great deal of hardship and potential problems for employers and employees.
Conclusion
We appreciate the DOL's efforts in holding these meetings around the country to explain PERM. Although the DOL did not answer specific audience questions about PERM, they did collect written questions they intend to answer on an FAQ page on the DOL WebSite in the future.
As always, we at The Law Office of Sheela Murthy are pleased to be able to share this cutting- edge information with our readers. We will continue to monitor the DOL's various presentations and update MurthyDotCom and MurthyBulletin readers on this hot topic that will affect many lives.
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