Labor Certification Backlog Reduction Plan at Department of Labor
Posted Jun 14, 2000

In a report dated February 24, 2000 the U.S. Department of Labor (DOL) proposed an ambitious plan to the U.S. Congress that would completely eliminate the case backlog in the permanent labor certification (LC) process by the end of 2001.

Overview of the LC Process :

If an employer of a foreign worker wishes to sponsor the worker through the green card process, the first step in a majority of cases is the labor certification. The purpose of the labor certification process is to determine whether there is a qualified U.S. worker available to take the job. After the labor certification, the employer files the I-140 Immigrant Petition with the Immigration and Naturalization Service (INS). Once the employer’s petition is approved, the employee submits his/her paperwork to INS in the U.S., or at a consulate abroad, for the final stage of the green card process.

Regular Labor Certification Process :

The Department of Labor has authorized state labor offices to accept applications for labor certification and to oversee the initial recruitment process. Upon receipt of the application, the state employment office (SESA) assigns a priority date to the case and review the documents for sufficiency. If no further information or clarifications are needed, the SESA then issues advertising instructions to the employer. The employer advertises the position and then issues the “results of recruitment” letter, assessing the qualifications of anyone who may have applied. The SESA then forwards the case file to the Regional Office of the Department of Labor with a recommendation. The Department of Labor reviews the case, and either certifies the application or issues a request for more information.

RIR Process :

By 1995, serious backlogs developed. By late 1996, with the backlogs increasing across the country, the Department of Labor published guidance, GAL 1-97, encouraging the use of the Reduction in Recruitment (RIR) method. The Department of Labor ascertained that the longest delay in the regular method occurred at the advertising and recruitment phase. They proposed that for certain occupations for which a shortage of U.S. workers could be shown to exist, it would be more efficient to complete the advertisements prior to filing the application to the SESA. Employers who could demonstrate a “pattern of recruitment” would be spared the inconvenience of waiting for the SESA to issue advertising instructions. Instead, information on the results of the recruitment would be submitted together with the application.

While the idea was a good one, the Department of Labor did not specify what would constitute a pattern of recruitment, i.e. how many advertisements to place, in what type of publication, how often, etc. Instead, the standard was “a pattern of recruitment that has taken place within the last six months." Many employers and SESAs, uncertain as to what was required of them, were slow to begin using the process. For about two years, many employers chose to continue using the slower but more predictable “regular labor certification” process. This wary attitude further increased the large backlog.

Moreover, Congress cut funding to the states for the labor certification program by 33% in 1997. The shortage of resources caused a further reduction in staffing at the SESAs, adding to the delays.

The process was strained even further by the sunset of Section 245(i), a law that had allowed those present illegally in the U.S., who were otherwise eligible for permanent residency, to complete their green card process from within the U.S. rather than applying from consulates abroad. An announcement was made that persons for whom labor certification applications were filed prior to midnight of January 14, 1998 would be able to preserve the benefit of being able to file for the green card in the U.S. (adjust status in the U.S.).

As a result, an unprecedented number of cases were filed in the period between November 1997 and January 1998. As of June 2000, some SESAs are still working on regular cases filed on or before January 14, 1998. By late 1999, RIR was accepted as the preferred method of processing cases and the backlogs began to recede. Because there are still over 75,400 cases pending, however, Congress requested that the Department of Labor develop a backlog elimination plan as expeditiously as possible.

The New "PERM" Process :

The Department of Labor’s newest solution, commonly called the “PERM process,” introduces the following highlights.

Increased funding – Congress has provided an additional $5 million to be distributed proportionately to the SESAs with the greatest backlogs.

The pipeline regulation – The Law Office of Sheela Murthy first reported back in November 1999 that the Department of Labor had announced plans to enable conversion of existing cases undergoing the regular labor certification process to RIR, as part of an overall effort by the Department of Labor to reduce backlogs at the state labor offices.

The PERM process would work as follows. An employer who conducts recruitment (advertisements, job fairs, etc.) after a regular LC case is filed, but before advertising instructions have been issued, would be able to submit documentation of these recruitment efforts to the SESA as evidence of recent recruiting. This documentation would allow the case to be converted to RIR processing while retaining the original priority date. The Department of Labor has estimated that about 85 percent of applications that are converted to RIR would then be approved promptly.

Note: Since the time that this regulation was proposed, it has been projected that the regulation would have an initial publication date "sometime" in December 1999. That date was soon pushed forward to "sometime" in March 2000 and effective May 2000. As of May 31, 2000 the draft regulation was in the review process at the Office of Management and Budget, so it may be several more months before the final regulation goes into effect. The tentative proposed date for final implementation of the PERM process is March 2001.

The benefits of the PERM process include elimination of the middle people: one files all documentation directly with the Department of Labor. Then the Department reviews it, requests any needed information, and issues a decision on the case. The idea is to streamline the process by eliminating any duplication of work between the state and federal agencies.

As previously reported in the MurthyBulletin, the same type of application package now prepared for the RIR process would be used in the PERM method. The employer would make a good faith effort to recruit eligible U.S. workers prior to the filing of a Labor Certification application, and - after finding no available and qualified U.S. workers - would prepare the application, showing that the company has an opening for the position and that the sponsored employee meets the stated minimum requirements.

The difference between PERM and RIR is in the procedure for filing and reviewing the labor certification applications. Currently RIR applications are filed with documentation (such as copies of newspaper advertisements, job fair information, Internet advertisements, results of recruitment efforts and company information) to the state level Department of Labor. If the SESA finds the application acceptable, it is forwarded to the Department of Labor for final review and certification.

In contrast to RIR, PERM applications will be filed by facsimile, directly to the Department of Labor. The application will be accompanied by an affidavit summarizing the employer’s recruitment efforts. A percentage (yet to be determined) of labor certification filings will be drawn from the lot of filed applications and audited to ensure compliance with the law. While no specific criteria have been established for these audits, proof of the employer’s assertions would probably be required; therefore, a comprehensive record must be kept. The new system has been promised to be in place by April 1, 2001.

The following chart, included in the Department of Labor proposal, illustrates the ambitious schedule for reducing the backlog:

Backlog beginning of year : (FY2000) 75,400 ----- (FY 2001) 40,400
Incoming Cases : (FY2000) 55,000 ----- (FY 2001) 27,000
Cases Processed : (FY2000) 90,000 ----- (FY 2001) 67,400
Backlog end of year : (FY2000) 40,400 ----- (FY 2001) 0

In addition to the above, the Department of Labor has already launched some backlog reduction initiatives:

- Regions have been instructed to assess cases by reviewing 7 "key elements" to determine the availability of U. S. workers.

- Regions have been instructed to perform "triage" with respect to incoming cases, and act quickly in cases involving occupations in which there is a known worker shortage.

The Law Office of Sheela Murthy, P.C. is optimistic about the potential of these proposed changes for revolutionizing and shortening the time frames to process permanent labor certifications. We view these proposals with some caution, however, realizing that initial confusion is possible before any new system operates efficiently. We will continue to provide updates on the changes in labor certification processing as further information becomes available.


© The Law Office of Sheela Murthy, P.C.