March 2006

So Your Labor Certification is Still Sitting at the Backlog Processing Centers?

The DOL continues its efforts in processing the 300,000 plus applications filed across the nation under the old Alien Labor Certification program that was in effect prior to March 23, 2005 when PERM was initiated. Labor certification is the first step in obtaining permanent resident ("green card") status for most foreign nationals sponsored by U.S. employers. Most of the satellite offices (Boston, San Francisco, New York) retained by DOL in the consolidation of the cases have now either ceased operations are about to do so, leaving only the two ETA Backlog Elimination Centers (“BECs”) in Bala Cynwyd, Pennsylvania (referred to as the Philadelphia BEC) and Dallas.

The FAQs issued by the DOL provide some information on the process and timeframes. Currently the DOL estimates that with adequate resources, it will take over thirty (30) months to eliminate the permanent program's backlog of cases. We understand the next three years is a long time to wait for the coveted approval letter.

As part of DOL's efforts to improve the processing of permanent labor certification applications, cases from the Regional Offices and the State Workforce Agencies were transferred to the BECs. The centers are issuing a "45-day letter" to the employer on each case once preliminary data entry has been concluded. The letters ask the employer if it wishes to continue with the processing of the application. Additionally, the letter informs the employer if any information from the application is missing or believed incorrect. The employer is given 45 days from the date of the letter to respond. If the employer fails to respond, the application is closed. The letters are issued to both the employer and the attorney of record. The letters are much needed to many of our clients.

To date our office has received many of these 45-day letters, but do not despair you are not alone if you have not received one. We are waiting for letters on many of our pending applications. From the ones we have received, there does not appear to be a pattern to the order in which these letters were being issued, despite the pronouncements of DOL Headquarters that the cases were being entered and processed in chronological order. This was confirmed recently by a source at the Philadelphia BEC. Based on this information, we now know that when this process first started, cases were being processed randomly and that they would work on cases as they received them regardless of the date they were initially filed at the state offices. The BECs, under pressure to account for all cases, have completed preliminary data entry on the cases to get them into the databases, and are now working on the oldest cases first and moving forward, following the two-track system (traditional and RIR cases) in place prior to the implementation of PERM. They are currently working on applications initially filed in April/May 2001 although many others beyond that date have been moved through the BECs and have been adjudicated to completion. No timeframes were provided on how quickly the BECs would work through applications for each month, and no processing times are likely to be posted for public consumption any time soon.

The Philadelphia BEC has also been instructed to only speak with attorneys and their staff, direct inquiries from the sponsored employee or sponsoring employer will not be taken. Through recent meetings we have had with DOL officials, we have also been asked that attorneys or companies not submit inquiries to locate applications. Due to the excessive volume of applications, these inquiries severely slow down their progress. Special provisions have been made for attorneys to obtain confirmation of the pending application for individuals who submitted their application prior to March 28, 2005 and require proof of submission in order to extend their H1B status beyond six years. The DOL has also requested that this option not be abused and only used for the purpose of obtaining confirmations on cases for H1B extensions beyond six years. This creates problems for any employee needing proof of filing for other purposes (such as to establish proof for 245i purposes. Please bear with us as this lengthy process continues on. We hope that DOL will improve their timeframes and adjudicate faster. In the interim please consider options but be very wary about losing your priority date in the process. We encourage all applicants with questions to contact their GT attorney to understand the ramifications of filing new applications, without careful planning one can lose their priority date by filing a new petition for PERM labor certification.