DOL Lengthy Processing Times

Many employment-based applications for permanent residency begin with a labor certification application filed with the State Workforce Agency ("SWA") of the Department of Labor ("DOL"). Currently the SWA’s are processing approximately 300,000 applications. The volume of applications being processed has caused severe backlogs in the processing times at the SWA’s. In those regions with a higher concentration of immigrants, the processing times are longer. It can take anywhere from one to four years, in extreme cases, to process a labor certification application.

The backlogs increased after section 245(i) was extended by Congress. The result was an overwhelming influx of applications with the SWA’s. Prior to April 2001 expiration of Section 245(i), the applications were being processed in three to four months in some jurisdictions.

Both the traditional and fast track reduction in recruitment applications are affected by the current backlogs. As a result of the backlogs at the SWA’s and the regional DOL offices, employers and individuals must place a greater emphasis on the timing of the permanent residence application. The length of time to process a labor certification application should be factored into the overall immigration strategy for each individual.

Given the lengthy processing times, employers may want to consider filing the labor certification halfway through the six-year period of H-1B status. This will help ensure that the labor certification application is approved and the I-140, immigrant petition is filed before the six years in H-1B status expires. Once the I-140 is filed, the employee will be eligible for a seventh year extension of the H-1B status. This seventh year is only available to those in H-1B status once they clear the DOL and file the I-140 with INS. When it was taking the DOL only a few months to process the labor certification applications, employers could wait until the fourth or fifth year as an employee’s H-1B status before filing the labor certification. Waiting this long is no longer advisable.

While H-1B employees have the option of the seventh year extension, those employees in L-1A and L-1B status do not have an option to extend their nonimmigrant status because of DOL backlogs. For this reason, for employees in L status, employers may want to consider beginning the labor certification process much earlier than they have in the past, if a permanent need arises for the employer.

The Department of Labor introduced the new PERM program in May 2002. The program is not yet in effect. Comments have been submitted in an effort to improve it viability. Advocates maintain the PERM program will greatly reduce the processing times.

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