Updated 05/31/2002: Labor Certification Backlogs and Funding Rescue on Horizon
Despite the efforts of the U.S. Department of Labor to reduce the backlog, including RIR conversion regulation, the permanent labor certification application backlogs have been mounting as people noticed on the DOL\' Processing Times Report. Reportedly, there are currently approximately 315,000 backlogged cases . It appears that the factors contributing to the backlog were massive filing on or before 04/30/2001 for the benefits of 245(i).
When RIR conversion regulation was released, it was hoped that it would help to remove the backlogs. And then came the economic slowdown and massitive layoffs in the labor markets. This changing labor market environment affected the officers at both state and federal level with mounting negative attitude over the labor certification applications and with all different demand for evidence and requests by each state office and each DOL Region.
In the midst of such confusion, the DOL HQ released Memorandum on March 20, 2002 which was intended to give a uniform guidance to all 50 state offices and 10 federal Regional offices as to how they should process labor certification applications facing layoffs in the industry or by the specific employer. Unfortunately, this Memorandum has been interpreted differently by each office, adding confusion to the process. The Memorandum did not appear helpful for reduction of backlogs and uniformity in processing. It rather appears that the pace of processing has slowed down because of the additional jobs that the state and federal officers must undertake to deal with the layoff problems. The ultimate blame for the staggering backlogs should not be directed to the DOL but to the continuing economic recession and layoffs.
Report indicates that DOL has already received a portion of the H-1B fund which this web site reported earlier and is waiting for permission to use some of the money to alleviate state backlogs. This is certainly a good news for the state offices. However, the state offices\' burden is extremely heavy as under the PERM program, the states should complete all the backlogged cases by September 30, 2003 and be phased out of the permanent labor certification process. We hope that the soon-to-be-initiated new labor certification system (PERM) help achieving this goal. It is, however, this reporter\'s opinion that the DOL may fail to achieve the plan unless it revises "substantially" the proposed PERM regulation as there are many poisonous elements that contradict the intent of the program. For instance, the proposed PERM regulation will allow a new filing without losing priority date, but not too many cases in the pipeline may attempt to convert to the PERM case because of the risk involved in the proposed PERM application in that once it is denied, the applicant loses everything after waiting for years. Visibly missing is the safety valve which was incorporated in the RIR conversion regulation which allowed such denied cases to continue even after denial of RIR, even though it will go through a regular application. This illustration is just a tip of iceberg that are inherent flaws in the proposed PERM regulation.
