By: Attorneys Robert L. Reeves and Natalie Joy Ang
Prior to the implementation of the new labor certification system known as Program Electronic Review Management (PERM), labor certifications were filed either as Reduction in Recruitment (RIR) or traditional recruitment. Due to the large volume of labor certification cases filed at the local State Workforce Agencies (SWAs) such as California’s Employment and Development Department (EDD) many of these cases were pending for several years. This resulted in a significant backlog and this backlog varied from state to state. In order to resolve this issue, the Department of Labor (DOL) created two centralized Backlog Elimination Centers (BEC) in Philadelphia and Dallas. All new cases are now on the PERM fast track system, but the older cases from the state employment agencies remain backlogged. The DOL recently provided an update on the labor certification backlog.
Labor certification cases transferred to the BECs are entered into a central database. The BECs then issue a “45-day continuation option letter” to the employer and/or attorney representative. This is a request for confirmation that the employer wishes to continue the case. This letter may also contain a list of corrections or deficiencies in the application that the employer must correct before processing may continue. The employer or attorney representative has 45 days from the issuance date to respond. Failure to timely respond will result in the closure of the case. The BECs report that they have completed the issuance of “continuation option letters” for all backlogged cases.
If the 45-day letter has not been received, the employer or their attorney representative will have until October 11, 2006 to submit an e-mail inquiry to the BEC. The BEC will search its files, and if it cannot locate the file, it will request the attorney representative to re-create the file within 30 days. Once the BEC receives the re-created file, it will determine if the case is eligible for processing, then place it in the appropriate processing queue.
According to the DOL, the backlog centers classify cases into two processing tracks – RIR and traditional. Each track is handled under the principle of “First-In/First-Out,” meaning cases that have been pending longer are given priority. For RIR cases the BECs are issuing decisions or Notice of Findings with requests for additional information or documentation. Traditional cases are now receiving recruitment instruction letters that provide prevailing wage information and instructions on conducting recruitment. The BEC staff will place job orders at the same time it sends its recruitment instructions. The recruitment period “clock” starts upon receipt of the instructions.
On September 11, 2006, the DOL launched a case disclosure system which may be accessed through its website at http://www.pbls.doleta.gov/pbls_pds.cfm. Case status may be obtained online by using BEC’s case number. The system does not currently provide information on processing times.
The DOL has reiterated that amendments to RIR and traditional cases should be made in writing to the BEC at any time before the RIR is certified or before the job order begins for traditional cases. BEC officers may contact the employer or the attorney representative to obtain additional information or documentation to complete the processing of an application. It is important to make amendments and submit additional evidence promptly in order to avoid delays in processing.
The DOL has finally made significant improvements in adjudicating its pre-PERM cases. It is expected that it will now process pending labor certification cases at a faster pace. In order to ensure that your pre-PERM labor certification case is handled appropriately, we strongly recommend consulting with a reputable immigration attorney or firm with experience in handling employment-based cases.