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DOL Publishes Backlog Reduction Rule

by Cyrus Mehta

The Department of Labor (DOL) published an interim final rule on July 21, 2004, that attempts to reduce the backlogs in the labor certification process.

As a background, labor certification is generally the first step when an employer sponsors a foreign employee for a green card. In order to obtain labor certification, the employer must establish that it was unable to find sufficient US workers for the position.

There are generally two ways for an employer to file a labor certification application. The traditional method involves the employer filing an application with a State Workforce Agency (SWA). After the application is reviewed, the SWA closely supervises the employers recruitment effort to find out whether US workers are available for the position or not.

The fast track method, known as Request for Reduction in Recruitment (RIR), allows the employer to establish unavailability of US workers through its own recruitment method prior to filing the application with the SWA.

In both the traditional and RIR filings, the federal regional office of the Department of Labor (DOL) ultimately reviews the application and has the authority to either grant or deny labor certification. Whether an application is filed under the traditional or RIR method, it passes through a two-tier review: first with the SWA and then with the Regional Office.

Prior to an immigration-filing deadline of April 30, 2001 under Section 245(i), the SWAs saw a huge surge of labor certification filings resulting in an unprecedented backlog. Until recently, some SWAs were still processing RIR applications filed in April 2001. Cases filed under the traditional method got even further backlogged. Thus, many have been waiting now for several years for an initial review with a SWA.

The DOL estimates that approximately 236,000 applications were filed to meet the deadline of April 30, 2001, at a time when less than 100,000 were filed in an entire year. At the start of April 2003, over 280,000 permanent labor certification applications were in the SWA processing queues throughout the nation. The DOL funded a study to identify strategic options to reduce backlogs. One recommendation was for the processing to be done in one location and to consolidate the functions currently performed separately by the SWAs and the Regional Offices. The DOL initiated a pilot program to test the feasibility of centralized processing and found that one stop processing achieved efficiency and economies of scale.

However, in order to formally consolidate the two-tier processing, the DOL needed a rule to amend its existing regulations.

The interim final rule will authorize the National Certifying Officer (who is the Chief, Division of Foreign Labor Certification) to direct a SWA or a Regional Office to transfer to a centralized processing site applications either pending with a SWA or with a Regional Office. The rule also allows the National Certifying Officer (NCO) to issue a directive to the SWAs and the Regional Offices stating how pending applications are to be identified for centralized processing and where they are to be transferred. Once the application is transferred, the centralized processing site will perform all required functions of the SWA and the regional office.

The rule further states that if the labor certification presents a special or unique problem, the centralized processing site, in consultation with or at the direction of the NCO, may refer the application to the NCO for determination.

The backlog reduction rule should not be confused with PERM, another proposal to streamline labor certification procedure. PERM would allow labor certification applications to be processed and approved within weeks rather than years. Instead of the DOL reviewing or supervising the employers recruitment, under the PERM program, the employer would have to make attestations that it has conducted a good faith recruitment in accordance with the new regulations. Under PERM, even though the case may be approved in a few weeks, the DOL may still flag such a case for an audit.

The new rule indicates that PERM is expected to be finalized in 2004. Even if the PERM rule is published in 2004, it will take at least 120 days for it to become effective.

The good news is that the backlog reduction plan goes hand in hand with PERM. PERM can only become operational if the backlogs under the existing system are eliminated. Thus, the promulgation of this rule could herald that PERM is coming soon!

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555. [Ed. bio modified 8/04/2004]

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.