DOL Provides Additional Guidance on BECs and PERM Centers
Posted Feb 04, 2005
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Representatives from both the U.S. Department of Labor (DOL) and American Immigration Lawyers Association (AILA) met on January 1, 2005 to discuss labor certification Backlog Elimination Centers (BECs), PERM centers, and other labor certification issues. A summary of their discussions was released on January 24, 2005. We have summarized highlights of that report for the benefit of MurthyDotCom and MurthyBulletin readers.
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BECs Currently Processing Only Cases from Own Regions
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The DOL confirmed that BECs are currently processing only labor certifications that moved from their own regions into the BECs. The 45-day letters have still not gone out on all cases that were transferred from the Dallas, Philadelphia, and San Francisco regional offices into the BECs, and a case is not processed until the 45-day letter is returned with a response. One reason the BECs may not yet be processing cases from other regions and the State Workforce Agencies (SWAs) is that the DOL is working on establishing national standards for the labor certification reviews. These national standards will attempt to address the fact that each region has somewhat different interpretations of the requirements for the labor certification. Once these national standards are established, it may be made clearer whether a switch is in the best interest of those considering re-filing their existing cases under PERM.
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45-Day Letter Only Indication of Transfer
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The DOL confirmed that the SWAs and regions do not have funding to issue transfer notices when the cases are moved to BECs. Therefore, the only notice of the transfer will be the 45-day letter to the employer or employer's representative. The DOL did indicate that the San Francisco regional office was left with fewer than 10,000 remaining cases. This follows the transfer of 10,000 cases to the Dallas BEC and 10,000 to the Philadelphia BEC. So, for cases that were sitting at the San Francisco region, there is approximately a one-in-three chance as to where the case is at this time. Since the oldest cases were the ones transferred, the more recently-filed cases most likely remain at the San Francisco regional office.
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Processing Cases by First-In / First-Out (FIFO)
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Though cases at the BECs will be sorted into RIR and regular labor certification cases, the DOL advised that they are making every effort to get the cases with the oldest priority dates processed first, regardless of whether they are RIR or regular. Therefore, if the RIR processing is going faster than the regular case processing, the DOL intends to shift its resources. There likely will be little advantage as far as time for those who filed RIR cases rather than regular cases. This factor may also play a big role in the decision whether to re-file under PERM or wait out the processing at the BECs.
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Special Handling Cases
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The DOL is still working to identify Special Handling cases that were sent to the BECs and determining how to process them. There hopefully will be more information on this at a later date. For those who are not familiar with the term "special handling" it refers to a faster option for obtaining a labor certification available for certain faculty teaching at institutions of higher education.
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Job Orders for Regular Cases
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The BECs will process job orders for regular cases on a national level, using a national job order system. Job orders for cases that the SWAs processed were placed on a state level. PERM will also require job orders at a state level.
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45-Day Letters
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The DOL has indicated that it will accept an attorney's signature on the letter in lieu of the employer's signature, but if they receive a letter from the attorney and the employer, the employer's expressed intent will govern. The DOL agreed that employers could submit a substitute beneficiary at the time of responding to the 45-day letter and expressed that this is a "great" time to submit such substitutions.
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Prevailing Wage Determinations
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The DOL indicated that the SWAs should be able to make Prevailing Wage Determinations (PWDs) for PERM cases on or after March 8, 2005, when the 4 levels for PWDs will be required by law.
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DOT vs. O*Net
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The DOL confirmed that DOT (Dictionary of Occupational Titles) codes may be used for any cases filed before PERM is implemented. For PERM cases, the O*Net Job Zone must be used. The DOT codes provide a Specific Vocational Preparation (SVP) code that indicates how much education and experience a person must have for a specific job. The O*Net Job Zones, instead, provides a range, where the range is between two SVPs.
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These updates provided by the DOL are helpful during this transitional time. We will continue to provide MurthyDotCom and MurthyBulletin readers with information concerning the complex and ongoing changes in labor certification processing.