June 30, 2006

Backlog Elimination - Will the Department of Labor Meet its September 2007 Goal?

At the American Immigration Lawyers Association conference in San Antonio last week, top Department of Labor (the "DOL") officials stated that the Backlog Elimination Centers ("BEC") are still on target to eliminate the backlog of more than 367,000 labor certification applications filed pre-PERM by September 2007. Whether or not they will accomplish this goal remains to be seen. The DOL expects that by the end of June, all cases will be fully data entered into the system and all 45 day letters mailed. The DOL noted that if an employer/applicant has not received a 45 day letter by the end of July, the case was most likely not received by one of their two centers. DOL then provided guidance on how to recreate the applications with the BEC.

By the end of July, the DOL predicts it will have a better handle on the volume and type of cases still remaining in the pipeline and as a result, expects to implement a website to post the processing times for adjudicating the remaining cases. In addition, the DOL will implement an interactive online case status system to allow applicants to enter their case number and receive an update on their case. The DOL also announced that it has begun issuing recruitment instructions for non-RIR cases that did not complete recruitment prior to the implementation of the BEC.

While most of the cases still pending at the BEC were filed under the prevailing wage regulations that allowed the employer to pay 95% of the prevailing wage, the DOL warned that the prevailing wage requirement -- which became effective March 8, 2005 and requires the employer to pay 100% of the prevailing wage -- will mandated in processing the remaining cases. If the DOL determines that the wage offered on the labor certification is below the prevailing wage, the DOL will offer the employer a remedy at the time the 45 day letter is issued.

Greenberg Traurig will provide further updates on BEC efforts to eliminate the backlog of labor certifications as they become available.