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Bloggings: May 07, 2008

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

More FAQ's: Centralization in Atlanta

The New PERM BOOK II features a special section on FAQ's, with an introduction by Larry Rudnick. Mr. Rudnick deals with a question of law, whether operating instructions such as FAQ's have the force of law. While for many years we were taught that operating instructions do not have the force of law (compare the old TAG in the DOL regulations), changes have been taking place in administrative law principles, and Mr. Rudnick explains that FAQ's may constitute rule-making under certain circumstances. Attached to Mr. Rudnick's article are all the FAQ's to date, including new ones that were just issued.

According to the latest round, starting on June 1st, only the Atlanta Center will work with PERM, while the Chicago Center will work with H-2A's and H-2B's. For those who are not sure which is which, H-2A's are agricultural temporary workers, including unskilled persons, and H-2B's are general workers in all other industries.

The first issue under the new FAQ's has to do with the Notice of Filing. Formerly, Notice of Filings had to include the address of either the Chicago or Atlanta Processing Center. Now only the Atlanta Center will be listed on the NOF. During the transition period, either a Chicago or Atlanta address is permissible on the Notice of Filing, however, after June 1st, new Notice of Filings must contain the Atlanta Address. DOL has stated that listing both addresses will not constitute the basis for a denial.

All PERM cases physically present in Chicago will be transferred to Atlanta on June 1st, and all applications mailed in must be sent to Atlanta starting on June 1st. It obviously behooves practitioners to avoid the mail-in confusion by sending their applications to Atlanta after June 1st, and not filing anything in Chicago for the rest of the month of May. It appears that applications filed in May will only be re-routed to Atlanta, with the possibility of being lost on the way.

Responses to audits and motions to reconsideration should be filed with Atlanta if the audit or determination was made after April 15th. In addition, the DOL instructions indicate where they should be sent.

Specialization in Atlanta should result in more even processing. In addition, the Atlanta Certifying Officer has always been burdened by H-2A agricultural worker applications, which constituted approximately 50% of all the H-2A's filed in the US. Now with Chicago bearing the burden to process H-2A's, Atlanta should be able to process PERM applications without seasonal delays associated with agriculture.

You can view the original FAQ's at this site:

http://www.foreignlaborcert.doleta.gov/pdf/NPC_Specialization_FAQ_Round_1_final2.pdf