Labor Certification Update: Department of Labor’s FY 2005 Transition Guidance
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Immigration News(
http://www.usavisanow.com/11-10-04.html)
November 10, 2004
The Assistant Secretary of the Employment and Training Administration (“ETA”) of the Department of Labor (“DOL”) recently issued a Fiscal Year 2005 Transition Guidance memorandum (“TG memo”) to all state workforce agencies (“SWAs”).
The TG memo states that the role of SWAs will be diminished, and labor certification adjudication will be centralized at two national processing centers whether or not the PERM program is implemented.
According to the TG memo, the DOL is proceeding on the assumption that the final PERM regulation will be published before the end of 2004, but outlines a contingency plan in the event the long-awaited PERM regulation is not published.
The TG memo outlines its current 2005 plan, its 2005 contingency plan, the role of the SWAs, and backlog reduction shipment schedules. A summary of these points is as follows:
DOL’s Current Plan:
The final PERM regulation is still pending clearance at the Office of Management and Budget.
If the PERM regulation is published, the SWAs will no longer accept labor certification applications.
After the PERM effective date, the role of the SWA with respect to labor certification review will be limited to prevailing wage determinations.
The TG memo confirms that the DOL is proceeding on the assumption that the final PERM regulation will be published before the end of the 2004 calendar year, and that the new program will be operational within sixty (60) days of the publication date, not 120 days as previously reported by the DOL.
DOL’s Contingency Plan:
The TG memo provides for a contingency plan in the event that the PERM regulation is not published. Regardless of whether PERM is published, the SWA role will change in 2005. Processing will shift from a state-federal system to a primarily federally-administered program.
In July 2004, the DOL published a backlog reduction interim final rule to allow the transfer of labor certification cases pending at either a DOL regional office or a SWA to one or more centralized processing locations. This rule also allows the DOL to consolidate state and federal processing functions in a central location. This permits SWAs to accept cases from employers, but no longer allows them to review applications.
To implement this backlog reduction regulation, the DOL has established two backlog elimination centers, one in Dallas and one in Philadelphia.
The DOL has moved federal staff from DOL regional offices to these two backlog centers.
Both contractor and federal staff training has started, and the TG memo reports that labor certification applications will soon be adjudicated by the backlog reduction centers.
Dallas and Philadelphia will initially process the DOL regional office backlogs and then begin to handle cases currently backlogged at the SWAs.
Work at the backlog reduction centers will be augmented by case processing occurring at the DOL regional offices and the SWAs. The DOL expects the Dallas and Philadelphia backlog centers to complete their work within two years, at which point they will be closed. In addition, the DOL is in the process of establishing national processing centers in Atlanta and Chicago, where all labor certification applications (except for those backlogged cases being processed in Dallas and Philadelphia) will be adjudicated. These national centers are expected to be operational by January 1, 2005. If PERM is not implemented, Atlanta and Chicago will serve as two additional backlog reduction locations.
State Workforce Agency Role:
If the PERM regulation is published, SWAs are instructed to stop accepting labor certification applications sixty-one (61) days after the publication of the regulation.
The DOL will issue specific guidance as to where SWAs will forward remaining applications.
SWAs will continue to accept and review cases until January 1, 2005, at which point, SWAs will not start review of any applications, but simply date stamp and log applications in order to establish a filing date (priority date). After January 1, 2005, cases at SWAs that are in the process of SWA review should be completed and then forwarded to Atlanta or Chicago.
SWAs will continue to accept but not open and review cases filed by employers after January 1, 2005. These applications will be forwarded to either Atlanta or Chicago based upon a schedule to be provided to the SWAs.
SWA cases that are under review up until January 1, 2005, will be sent to the currently assigned DOL regional office.
Backlog Reduction Center Shipment Schedules:
The ETA estimates that by March 31, 2005, all SWA backlog cases will be transferred to one of the backlog reduction centers in Dallas or Philadelphia, or assigned to a DOL regional office for completion of processing.
All cases received at backlog centers will be processed in order of priority date to ensure the oldest cases are worked on first.
Traditional and Reduction in Recruitment (“RIR”) cases will continue to be reviewed in two different tracks at the backlog reduction centers.
The DOL regional office in San Francisco has already transferred 20,000 pending labor certification applications to the backlog centers.
This transfer will assist in reducing the oldest federal backlog of cases. Applications that a regional office has already started to review will not be transferred in order to avoid case disruption.
The first shipment of cases from the SWAs was scheduled in October 2004. This consists of those cases at the state level with the oldest priority dates, regardless of geographic location. Therefore, not all SWAs have been involved in this first round because the DOL’s concentration is focused on the oldest case backlogs.
The final round of case shipments will begin in January 2005, and should be received by the backlog centers no later than the end of March 2005. This will include all cases received by all SWAs prior to December 31, 2004, for which case review has not started.
What this means:
The following points summarize the most significant changes to labor certification processing that will begin on January 1, 2005:
The national processing of labor certification applications will use a first-in, first-out policy, regardless of the location where the case was originally filed in order to apply an equitable and fair approach.
Because of the national processing approach to labor certification review, there will be no processing advantage to filing in one geographical location versus another.
The backlog reduction centers will review cases in order of priority date, and that will benefit the most severely backlogged states: California, New York, and New Jersey.
The 20,000 cases that have been shipped from the San Francisco DOL regional office have not yet been identified, and it is unknown to which backlog reduction center they have been shipped.
As the backlog reduction plan is rolled out,
the DOL will send to attorneys of record notification of where cases are being sent, as well as a request for confirmation that the employer intends to continue the application.
If PERM is not implemented, the Atlanta and Chicago national processing centers will serve as two additional backlog reduction sites.
If PERM is not implemented, labor certification applications submitted after January 1, 2005, will continue to be filed with SWAs, and then transferred, in order of priority date, to either a backlog reduction center, or to one of the national processing centers in Atlanta or Chicago.
Cases will be forwarded from SWAs based upon a schedule from the ETA division of DOL.Therefore,
cases filed with a SWA after January 1, 2005 will not receive any sort of priority in adjudication.
Substantial and significant reduction in both the traditional and RIR backlogs is expected in 2005, particularly for cases filed in California.
We will provide more information as soon as it becomes available.
