245(i) Redux: What It Will Do To The Labor Certification System in 2001
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:
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:
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: http://www.ilw.com/membership
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: http://www.ilw.com/membership