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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Changes In Foreign Labor Certification Processing

by Olivia Thuma

It is clear that there is going to be an imminent sea change in the processing of foreign labor certification applications.

Current Foreign Labor Certification Procedures

In most employment-based immigration cases, an Application for Alien Employment Certification (Form ETA-750) has to first be filed by a US employer to the Department of Labor (DOL), which certifies it after establishing that the employer was unable to find qualified US workers for the position. Under the current rule, there are two different procedures for filing a foreign labor certification application. First, the traditional method, involving the US employer filing an application with a State Workforce Agency (SWA) and the SWA directly supervising the recruitment efforts to locate qualified US workers for the proffered position. Second, the Request for Reduction in Recruitment (RIR), which establishes unavailability of US workers through the employer’s own recruitment efforts prior to the filing of the labor certification with the SWA.

In both the traditional and RIR cases, the method of sequential state and federal processing is utilized. The application for alien employment certification is first reviewed by the SWA and subsequently forwarded to the federal Regional Office of the DOL (Regional Office) for final determination. It is the Regional Office that has the authority to certify or deny the foreign labor certification.

PERM

PERM is a final rule that streamlines the filing and processing of foreign labor certification applications. It is currently awaiting clearance by the Office of Management and Budget (OMB). PERM is expected to be published before the end of 2004 and it will be operational within 60 days of its publication.

PERM aims at speeding up significantly the foreign labor certification processing. Instead of years, it will take a few weeks to process an application. Also, under the new regulations, the DOL will no longer supervise or review the prior recruitment of the employer; instead, the employer will have to attest to conducting good faith recruitment efforts in accordance with PERM. An employer’s recruitment efforts would be subject to DOL audits.

The DeRocco Memo of September 29, 2004

The DOL has recently issued a memorandum, which provides guidance and update on the streamlining activities in the foreign labor certification process during the transition period. The DeRocco Memo of September 29, 2004 (FY 2005 Transition Guidance) 1 re-engineers the foreign labor certification programs in the context of changes proposed by the PERM regulations.

Assuming that PERM will be published without any further changes, the role of SWAs in the foreign labor certification process will significantly change during Fiscal Year 2005. Under the new rule, SWAs will no longer have the authority to accept applications for alien employment certifications. However, they will continue to perform other traditional SWA functions, most importantly, providing employers with prevailing wage determinations and administering the state role in the temporary labor certification programs, including the H-2A and H-2B programs. In the meantime, until PERM becomes effective, SWAs will continue to accept foreign labor certifications. SWAs will stop accepting Form ETA-750s from employers 61 days after the publication of PERM.

The FY 2005 Transition Guidance sets forth a Contingency Plan, stating that the role of SWAs will change even in the event PERM is not published. Regardless of whether PERM is published or not, instead of SWAs, from now on centralized federal locations will be responsible for processing foreign labor certifications. If PERM is not published, SWAs will continue to accept and process foreign labor certifications until January 1, 2005. After January 1, 2005, SWAs will not open any new permanent labor certification cases but will continue to “date stamp” and log in permanent labor certification applications they receive, establishing the filing date for subsequent processing.

The Employment and Training Administration (ETA) of the DOL accepted a center-based approach and established two temporary centers in Philadelphia, PA and Dallas, TX, initially to eliminate the regional office backlogs and then to handle cases currently backlogged at the SWAs.2 The Contingency Plan expects both Backlog Reduction Centers to be fully operational and adjudicating foreign labor certification backlogged cases by October 2004. These temporary backlog centers will be closed within two years upon completion of their work.

It is anticipated that by March 31, 2005, all SWAs will transfer their backlogged applications to the backlog reduction centers in Philadelphia and Dallas, or assign them to ETA foreign labor certification offices in New York, Boston or San Francisco. These applications will be processed using the first-in, first-out (FIFO) principle, in order of original filing dates, regardless of where a case was originally filed.

The ETA will also establish permanent National Processing Centers in Atlanta, GA and Chicago, IL that will be responsible for processing all foreign labor certification applications (except the backlogged cases processed in the temporary backlog centers in Philadelphia and Dallas). According to the Contingency Plan, both national processing centers will be operational by the end of 2004. New York cases will be processed by the Atlanta Processing Center. 3

Cases that are still open on January 1, 2005 will be worked upon until they are ready for forwarding to an ETA national processing center. SWAs will continue to accept but not open foreign labor certification cases filed after this date, and forward them for adjudication to either Atlanta or Chicago according to a schedule provided by the ETA. The ETA will issue further instructions on the exact forwarding process (including addresses and contact information).

Conclusion

Regardless of whether the PERM regulations will be published or not, the role that SWAs currently play in the foreign labor certification processing will dramatically change in Fiscal Year 2005. The shifting of the processing of foreign labor certification applications from the SWAs to centralized federal locations will hopefully be more efficient, as well as beneficial for US employers and foreign workers.



1 Memorandum from Emily Stover DeRocco, Assistant Secretary for Employment and Training, to State Workforce Agency Administrators (September 29, 2004).

2 These Backlog Elimination Centers were created by the Interim Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Backlog Reduction (July 21, 2004). This rule allows ETA to 1) transfer permanent labor certification cases pending at either an ETA regional office or SWA to a centralized processing location, and 2) to “consolidate” state and federal processing functions in a central location. Under this rule, SWAs would still accept cases from employers but would no longer be responsible for processing of permanent labor certification cases.

3 See Attachment 3 of the DeRocco Memo listing National Foreign Labor Certification Processing Centers and corresponding SWAs.

This article originally appeared on http://www.cyrusmehta.com/.


About The Author

Olivia Thuma is a Law Clerk at Cyrus D. Mehta & Associates, PLLC. She graduated with a Master of Laws degree from Columbia Law School in 2003, where she was a Human Rights Fellow. She also received a Master of Law degree from the Jagiellonian University Faculty of Law and Administration (Poland) in 2001. She was a recipient of scholarships from Columbia Law School, Boston College, SOROS, OSI, and the Ministry of Education of the Republic of Poland. This article was written under the supervision of Cyrus D. Mehta, Esq. Further inquiries to the firm can be made at (212) 425-0555 or info@cyrusmehta.com.


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


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