February 16, 2005

Backlog Reduction Centers

As our readers know the face of the alien labor certification process is changing quickly. Many have asked what about the current cases that have been pending in some regions for over three years.  Will the new Department of Labor (DOL) PERM program help these cases? Should our employees re-file their cases in the new system? These are questions that need to be answered on an individual basis so it is important to have counsel review the particulars of each matter.  However, the good news GT can share will all is the new Backlog Reduction program recently rolled out by DOL.  In an effort to reduce the backlog of labor certification cases filed prior to the implementation of PERM the  DOL has implemented two new Backlog Reduction Centers in Philadelphia and Dallas. The DOL will also operate two satellite offices in Boston, New York and San Francisco until the workload can be decreased. The backlog reduction program is in the process of transferring most of the existing cases to a centralized ETA processing center; this will standardize and streamline procedures for permanent applications. The backlog reduction program will eventually house all of the approximately 310,000 applications currently pending. To date, more than 55,000 cases have been transferred from the DOL regional offices, including Dallas, Philadelphia, San Francisco, Atlanta and Chicago. Another 84,000 cases have been transferred from the State Workforce Agencies (SWAs); to date only "unopened" cases have been transferred. Unopened cases are cases where a job order has not been ordered yet.

The Backlog Reduction Centers' first priority is to enter each case into the database -- this means literally typing in relevant information from each ETA-750 application, word for word. Once that is accomplished, the BRCs send letters to employers (and their agents) verifying that they wish to continue with the case and to make any corrections to the ETA-750S that are needed. Employers must note there is a 45 day response time in which to reply. The letters must be returned within 45 days to keep the case active. Please note that the issuance of a 45 day letter does not mean that the case will be immediately worked. It only indicates that the case has been received at the BRC and has been entered into the database. If an employer does not exist in database, documentation is also being requested in the 45 day letter to establish that the employer does exist. Approximately 26,500 cases have received 45 day letters so far; more go out each day as the cases arrive and are sorted and entered.

The goal is to eliminate the backlog within 24-30 months after implementation of PERM. The Backlog Reduction Center will use the method of first-in, first-out regarding the scheduling of the transfers. However, it has been noted that the BRCs will process cases based upon their original filing date, regardless of which state the case is from, or whether it is an RIR or traditionally filed case (although it should be noted DOL intends to keep the two tracks and may work them on different timelines). This may have the unintended effect of prolonging some cases.

Every case in the BRC will eventually be in the same software system, and hopefully will begin to utilize a consistent uniform approach to how cases will be processed. The DOL is in the process of developing a system so applicants can know where their cases are. This system will not be available for some time yet. DOL is also working out details for adjudicating the cases consistently -- a tall order where the cases were filed in different jurisdictions with very different recruitment standards, to name just one potential area of dispute.

Greenberg Traurig will continue to provide updated information on the BRC program as soon as it is available.  You can also find recent news about PERM and BRC in our recent newsletter.