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245(i) Redux: What It Will Do To The Labor Certification System in 2001
by Sam Udani

Prior to its recent revival, the deadline for 245(i) eligibility was January 14, 19981. The deluge of applications filed in the first two weeks of January 1998 was so great that New York and California SESAs are apparently still wading through that backlog. What will happen this time around? What are the practice pointers for attorneys to cope with the changed labor certification scene post-April 30, 2001? This article explores these points.

Twice of 1998!

Based on anecdotal evidence from attorneys across the country, the number of labor certification applications filed this time may be twice as many as last time2. There are a number of reasons for this:

  1. Many years have elapsed since 245(i) was last available, and many potential beneficiaries now exist who are clutching at the straw of 245(i) to regularize their presence in the USA. Media coverage has certainly helped in making people aware that they may have a chance to legalize their status.
  2. The prolonged tight labor market has convinced many employers to agree to sponsor immigrants, even though most employers find the labor certification process complex, pointless and painful.
  3. Attorneys are now more aware of the importance of making hay while the sun shines3.
However, the reaction of SESAs to this new barrage of applications is unlikely to be the same as the last time when many were demoralized upon receiving mountains of files. This time the SESAs may, in fact, welcome the incoming flood of applications. What has changed in the last couple of years is that the SESAs have been made painfully aware of USDOL's intention of phasing them out of the labor certification program in favor of the PERM program. This time the SESA staffs may see the new applications backlog as a guarantee of their own job-security for several more years.

The reaction at the Regional Offices of the USDOL is likely to be the same as last time once the SESAs start flooding them with 245(i) labor certification cases. It is probable that the Regional Offices will opt for speed over quality in processing applications. Mass certification drives are entirely possible.

Goodbye to PERM!

As is well known, the USDOL has for several years been hard at work to improve efficiency and processing times in the labor certification process. The culmination of these efforts was to be the PERM program4, originally scheduled for implementation in October 2000, postponed subsequently to April 2001, and then to October 2001. Since OMB has made clear to the USDOL that the PERM program cannot be implemented without phasing out the backlog, and since the new 245(i) backlog is likely to last several years, the PERM program is now likely to be indefinitely postponed. This is bound to be disheartening to the USDOL HQ staff who have labored for years to launch this program.

The RIR conversion regulation5, however, is likely to now be expedited, and the interim final rule may be published this summer. AILA is lobbying USDOL to include 245(i) cases in the RIR conversion regulation, and it would appear that USDOL may try to make this happen6.

EB Quota Crisis

Gary Endelman has examined in numerous articles in Immigration Daily the issue of the Employment Based immigration quota being grossly insufficient to meet the country's need for immigrant labor. Congress applied a band-aid to this problem, without directly addressing it in enacting ACTA last year7. The large number of labor certification applications being filed now make the day of reckoning for Congress likely sooner rather than later.

Practice Pointers for Attorneys:

Attorneys seeking to navigate the changed labor certification rapids may want to consider doing the following:

  1. Educate Clients
    Both employers and individual clients will need extra hand-holding over the coming year(s) as delays mount throughout the system. Attorneys who have become accustomed to quick RIR certifications may find it particularly difficult to explain the new delays to upset clients.

  2. Staffing
    Several law firms have taken on extra staff to handle the 245(i) flood. Since labor certification cases tend to drag on for many years (through the I-140 and I-485 stages), it may be a good idea to augment the permanent staff. Even for those attorneys who do not add to permanent staff, the extra work will likely offset the slowdown in software H-1Bs.

  3. Jurisdiction-shopping
    For employers with locations in multiple states, it may once again become necessary to consider processing times in different SESAs and USDOL Regions. Such jurisdictional arbitrage may return in force.

  4. The Lauretta Issue
    The new delays will once again highlight the abandonment of the first-in-first-out principle of processing labor certification applications at some SESAs (e.g. California), and in most USDOL Regions. Most attorneys have ignored the issue so far. One notable exception was the Lauretta litigation in California8. This issue is complex, and cannot be done justice in a few lines, however, I may write on this topic in a future article. The practice pointer here is that litigation may be a realistic alternative in some labor certification cases which are delayed as a result of this USDOL policy.

  5. INS Enforcement
    Since 1998, enforcement activity by the INS has continued to rise as Congress continues to pour money into enforcement activities9. In the past, enforcement actions based on labor certification applications have not been an INS priority, but with increased funding, INS increasingly conducts sporadic enforcement based on SESA/USDOL tips. There is not much that attorneys can do about this, but it helps to keep in mind that this is a more common occurrence in some states than in others. Two relevant factors are the degree of agressiveness of the INS District Office in enforcement actions and the policy of the state regarding state angencies' cooperation with the INS.

The influx of large numbers of 245(i) related labor certification applications will doubtless have a major impact on the labor certification system, and hence on law firms with significant labor certification practices. I hope that the above will help attorneys think about the challenges and opportunities that lie ahead.

1 In December 1997, I wrote an article (published in Bender's Immigration Bulletin) titled "The last straw? What the extension of 245(i) will do the Labor Certification System." Fortunately, I was wrong in that 245(i) turned out not to be the last straw that broke the labor certification system. Unfortunately, I was almost correct, and the last 245(i) extension seriously disrupted the labor certification system throughout the country, and forced many attorneys to switch to RIRs.
2One law firm told me that they had filed 600 labor certification applications by the first week of April!
3 See my previous article: "Make Hay While the Sun Shines".
4A description of the PERM program was published in the Federal Register on August 1. 25, 2000, as a "Notice of Guidelines" (65 Fed. Reg. 166, 51777-51779).
566 FR 46081.
6This point is somewhat speculative, since the author does not have any firm evidence that USDOL will in fact back such an extension of date for RIR conversion. The author bases his point on the institutional interest of USDOL in reducing the backlog.
7The band-aid was in permitting the unused Employment-Based country quotas to be made available for over-subscribed countries.
8Lauretta V. Herman No. 98-56061, (9th Cir. March 5, 1999).
9 The latest INS budget is one in a long line of Congressional/Executive moves to increase enforcement while services get mere lip service.

About The Author

Sam Udani has written articles on labor certification for several law journals, and has lectured on labor certification to many bar associations across the country. He has assisted hundreds of attorneys on labor certification matters. He is a member of the ILW.COM team and invites attorneys to become ILW.COM members by clicking here:

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