Department of Labor Update : Spring 2002
Posted Apr 26, 2002

Members of the American Immigration Lawyers Association (AILA) periodically meet with the Department of Labor, Employment and Training Administration (DOL-ETA) to discuss issues of concern to immigration practitioners and their clients. The Law Office of Sheela Murthy, P.C. reports to MurthyBulletin and MurthyDotCom readers on policies, programs, and procedures discussed in these meetings. The following was most recently revealed:

PERM Program

DOL expects to release PERM program regulations very soon, hopefully before the end of April 2002. The PERM program, as our regular readers may recall, is a program designed to streamline the Labor Certification process by use of updated, computerized processing methods. There will be a 60-day comment period on the regulations.

LCA Online System

DOL reports that the online Labor Condition Application (LCA) system that is used in connection with filing H1B petitions, is working well. Approximately 58% of LCAs are filed online and DOL is encouraging wider use of the system. The Law Office of Sheela Murthy has been using the online application system since it first became available and we find it efficient and convenient.

DOL will be adding several enhancements to the system. These include the ability to withdraw previously approved LCAs and the ability to complete the LCAs via third-party software and "batch file" them with DOL.

Expedite Policy

The DOL is considering a policy providing for expedited processing of selected labor certifications in limited circumstances. They are developing the policy based upon three suggested criteria: (a) cases in which the H-1 numerical cap is an issue (b) cases with a child of the beneficiary who is "aging out" (turning 21) and (c) cases involving persons in removal (formerly deportation) proceedings who would have relief available if the labor certification were approved. It is expected that it will be several months before the policy is released.

Prevailing Wage Issues

The DOL indicated that it would be issuing a GAL (General Administration Letter) on the topic of Occupational Employment Statistics (OES) levels 1 and 2, for the purpose of prevailing wage determinations. DOL's OES surveys indicate two levels of prevailing wage figures for each type of job: entry level and experienced level. As labor certifications and H1Bs require that employers pay at prevailing wage rates, the determination of those rates is an important issue in immigration law. Since there are not sub-categories within the experienced level, as exist in the "real world," there often exists a substantial difference between level 1 and level 2 wages. There has been some confusion and non-uniform interpretation of the appropriate wage levels to be applied in particular cases. We look forward to the GAL, which we hope will clarify this issue.

RIR Conversions

The rules governing conversion of eligible labor certification cases from "regular" to Reduction in Recruitment (RIR) provide that they will be queued based upon the date of the conversion, rather than the date of initial filing. This method causes delay in case processing. The DOL stated that they will not change the rule and that it was designed so that converted cases would not move ahead of cases that were initially filed as RIR.

Layoffs

The Texas Workforce Commission had placed approximately 2,500 to 3,000 labor certification files on "hold," awaiting an official DOL policy regarding the processing of Reduction in Recruitment labor certifications in cases involving worker layoff by the petitioning company or generally within the industry. Announced on March 20, 2002, the policy was detailed in our April 5, 2002 MurthyBulletin article, DOL Issues RIR Guidance in Light of Layoffs, available on MurthyDotCom.

In order to track the layoff issue, the labor certification analysts review newspapers and check unemployment claims. They maintain lists of hundreds of employers who have experienced layoffs. This information is used in connection with the new policy for labor certification reviews in cases involving the layoffs of workers.

Additional Funding

DOL-ETA will be receiving approximately $4.5 million that will be used to relieve some of the existing backlogs. These backlogs are largely attributable to the LIFE Act filing deadline of April 30, 2001 that created a substantial "bubble" of cases filed on or shortly before the deadline.