BEC on LC Cases after Sep 30, 2007
Posted Sep 21, 2007
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The U.S. Department of Labor (DOL) held a teleconference on September 6, 2007, updating listeners on their processing of labor certifications (LCs) at the Backlog Elimination Centers (BECs, sometimes also referred to as the "Backlog Processing Centers" or BPCs). On May 5, 2006, our article, DOL Backlog Processing Centers - April 2006 Update reported that the DOL established a deadline of September 30, 2007 for eliminating the backlog of LC cases pending with the BECs. The recent teleconference provided clarification on DOL procedures for the remaining LC cases that will not be completed by September 30, 2007.
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Statistics and Processing of Cases Pending at BECs
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While the word from the BEC is that they have completed the processing of about 97 percent of their LC cases, there are cases that will not be completed by the September 30, 2007 deadline. In fact, our concern was expressed to MurthyDotCom and MurthyBulletin readers in our May 6, 2006 article. Because of the large volume of cases and the level of review required for processing those cases, we pointed out, the BECs may have difficulty meeting the September 30th deadline. The DOL indicated that, as of September 6, 2007, the BECs had processed 351,000 labor certification cases. There are 11,000 cases remaining that still need to be adjudicated. According to the DOL, they have requested action from the petitioners in half of those cases; a Notice of Finding (NOF) has been issued for 3,000 more cases; and some 1,500 cases are in their final stages of adjudication.
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BEC Procedures for Pending LCs after Sep 30, 2007
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It is anticipated that many of the pending cases will not be resolved until after September 30, 2007. Because some of the cases awaiting responses from employers have response deadline times that fall after September 30th, the BECs will stay open to complete the pending cases. The DOL, therefore, has not been able to indicate any specific date for closing their doors. The agency indicated, however, that this process will be gradual - the number of staff declining over time. The eMail accounts for gaining information will remain active until further notice from the DOL.
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BALCA Appeal Cases
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If the Board of Alien Labor Certification Appeals (BALCA) hears a case on appeal, and decides to return it for adjudication, the case will continue at a BEC until the BECs are closed. BALCA will send such cases to a PERM National Processing Center once the BECs are closed. The procedure outlining how to initiate the appeal process after the BECs are closed will be published by the DOL in the Federal Register at a later date.
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Timeline to Obtain Certifications after a Decision
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Employers should expect to receive any BEC labor cases that are certified by September 30, 2007 in the mail within 30 days following the actual certification.
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Cases Improperly Closed by BECs
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If cases have been improperly closed, the petitioner / employer should submit to the appropriate BEC a motion to reopen. If the BEC finds that any individual case has been closed in error, the case will be reopened and the online Public Disclosure System will be updated to show the status as "in process." If it is determined that the case was appropriately closed, there will not be any further correspondence and the online status will be not be changed. This is certainly not helpful to employers who will have no way of knowing if a case is still pending for review and decision at the BEC, or if it simply has been denied.
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Conclusion
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The most important message conveyed by the DOL at the September 6, 2007 teleconference was that the BECs will remain open beyond the previously-announced deadline of September 30, 2007. Employers and all other interested parties should follow normal business procedures until further notice from the DOL, which should be published in the Federal Register. Regarding the adjudication of labor certifications that had been delayed for years, it is also useful to know how very close the BECs came to completing this enormous task on time. While the replacement process, PERM, is not perfect, and there are differences in processing times between the two PERM centers, the discrepancies are measured in months, rather than in years, as had been the case for decades in the past. Hopefully, even while the DOL's focus is on protecting American workers, the LC system will continue to improve. The concern of U.S. employers is to obtain and keep the best labor force that will allow them to operate efficiently and effectively, encouraging a strong American economy.