DOL on PERM & Backlog Reductions
Posted Jun 04, 2004

Several top U.S. Department of Labor (DOL) officials met May 26, 2004 with representatives of the Washington D.C. Chapter of the American Immigration Lawyers Association (AILA). Members of the panel were William Carlson, Chief, Foreign Labor Certification Unit for the DOL; Harry Sheinfeld, Solicitor for the Employment and Training Administration (ETA) of the DOL; Charlene Giles, Team Leader at the Foreign Labor Certification Unit of the DOL; and Stephen Stefanko, Chief Certifying Officer for the Philadelphia region. The Philadelphia region consists of the following states: Philadelphia, Maryland, Washington, D.C., Virginia, and West Virginia. Attorney Sheela Murthy was both the moderator and a speaker at this prestigious program comprising senior national and regional DOL officials.

Overview of the Program

With its pending status at the U.S. Office of Management and Budget or OMB, PERM was the focus of a great deal of the questions and discussion. H2Bs and backlog reduction plans for both regular Labor Certifications and the RIR process were also major topics at the meeting. A majority of the attorneys from The Law Office of Sheela Murthy attended this important meeting.

PERM Update – May 2004

William Carlson, Chief of the Alien Labor Certification Unit at DOL, stated that he could not give a definite date that PERM will be published, but he expects it to be in the very near future. At that time, a date of implementation for PERM will be included. His expectations are still that this will be 120 days after the publication date. During that 120 days, the DOL plans to hold four training meetings throughout the United States to answer immigration attorneys' questions regarding the processes and procedures of the PERM system. There will be two PERM centers, one in Atlanta and one in Chicago, to handle central processing for all PERM cases. Mr. Carlson indicated that most of the input needed by the DOL and other affected agencies has already been obtained. It is not clear exactly how soon publication might occur. Indications are that it will not be before the AILA national conference in mid-June 2004 but that it will likely be before the end of this summer.

Harry Scheinfeld, Solicitor for the ETA at DOL, mentioned that the earlier expectation of PERM cases being processed within 21 days of filing is probably unrealistic, though he could not comment on what the processing time might be. He assured those of us in attendance that PERM processing times would be shorter than current labor certification processing times. One reason that the 21-day turnaround will not be feasible is that fraud detection and prevention cannot be reasonably accommodated in this timeframe. Mr. Carlson added that it is likely that the PERM regulations will contain strong penalties against those employers or employees who commit fraud in the Labor Certification processing under the PERM program.

Many individuals are under the impression that cases filed under regular processing and RIR processing now may be simply "converted" to PERM processing. Mr. Scheinfeld explained that the cases are not actually converted, though the processing date (priority date) for the previously filed regular or RIR labor certification case may be transferred to the newly filed PERM case after PERM becomes implemented. The PERM case, however, must independently be approvable. There were some questions about the mechanism for filing a new case under PERM, preserving the priority date while also preserving the prior regular or RIR filing until a decision is made on the PERM case. There was some conflict and uncertainty in the answers given. This is likely to be an important issue for those considering changing their cases over to PERM because many people will not want to risk an existing, approvable case and file under PERM only to be denied, since the criteria may be stricter under PERM.

LC/RIR Backlog Reduction Program

Mr. Carlson announced that the DOL is opening two Backlog Reduction Centers in Dallas and Philadelphia. Together, these centers will handle about 300,000 backlogged cases. These centers will be managed with the help of private contractors with adequate supervision by DOL personnel as required by law. As with all new staff, it will take time to train these individuals in the labor certification process. The cases will be selected from across the country on a first-in / first-out basis. Therefore, it seems that most of the cases would be coming from those areas most backlogged. The DOL indicated a goal of clearing all labor certification or RIR case backlogs within two years of PERM's implementation.

DOL and USCIS Discussions

There was some discussion about how the forward movement and increased speed in labor certifications would impact the workload of the USCIS. There are apparently ongoing discussions related to this, but no insight into any further changes at USCIS was provided. Clearly, if PERM becomes reality and the currently pending labor certifications start moving more rapidly, the workload of USCIS in terms of I-140/I-485 filings will spike significantly, at least in the near future, just as the USCIS starts streamlining its processing procedures for concurrently filed cases.

H2B Program

There were two H2B lawsuits filed against the DOL after the H2B cap was reached, but both cases are still pending. Charlene Giles, the Team Leader, Foreign Labor Certification Unit at DOL (former Chief Certifying Officer in Washington State), expressed concern that once the DOL begins accepting labor certification applications for the H2B program again in June 2004 some industries may be tempted to reinvent their times of need for seasonal or peak load employees and seek excess visa capacity. That is, the required labor certifications can only be filed 120 days in advance of the need for the individual on H2B. Therefore, some companies may try to claim that they need the individuals in October for jobs that are really only needed later in the year. Additionally, since it is possible to request approval for multiple positions, employers may exaggerate their needs just to make sure that they can acquire enough H2B approvals. In order to combat these efforts, the DOL will be looking at past trends of employers and industries. They will ask for additional evidence of need for employees if the employers ask for a significantly higher number of certifications than in years past.

Central Processing Group

As many MurthyDotCom and MurthyBulletin readers know, the DOL had an experimental labor certification processing unit known as the Central Processing Group (CPG). Charlene Giles shared an update with us on the CPG processing. The CPG stopped its operations on December 31, 2003, but it still had the 3,000 cases from some of the highest volume labor certification areas in the country. These cases were then sent to the DOL national headquarters for final resolution. Ms. Giles reported that all of these cases should be returned to their regions or states within the next few weeks. Some of the cases will still require additional action at the state or regional level. The DOL stated that they learned a great deal of valuable information from the CPG experiment, but will not use most of its methods in the new Backlog Reduction Centers. It appeared that most of what was learned was instructive as to how not to conduct central processing of labor certification cases.

Conclusion

We know that many MurthyDotCom and MurthyBulletin readers are anxiously awaiting the PERM regulation. We are monitoring this very closely and will provide our readers with any available updated information. Just this past week, the DOL ran advertisements for positions of Directors for both PERM processing centers and for its backlog reduction centers. This is a clear indication that PERM could, indeed, be right round the corner!