DOL Guidance on Cases Filed at SWAs
Posted Mar 11, 2005
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The U.S. Department of Labor (DOL) issued two memos February 16, 2005, to the State Workforce Agencies (SWAs) regarding the transition of files to the Backlog Processing Centers. These memos confirm that the SWAs will not process any of the labor certification cases filed prior to the implementation of PERM on March 28, 2005. The SWAs are scheduled to ship the properly filed 2005, pre-PERM cases to the Philadelphia and Dallas Backlog Processing Centers (BPCs) by April 22, 2005. The BPCs were formerly referred to as the Backlog Elimination Centers (BECs) or Backlog Reduction Centers (BRCs). The guidance given by these memos differs from that provided on September 29, 2004, which was the subject of our October 22, 2004 MurthyBulletin article, DOL Sends Transition Plan to SWAs, available on MurthyDotCom.
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Schedule to Move Cases to the BPCs
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The DOL indicates in the February 16th memos that, as of February 4, 2005, approximately 25 SWAs had shipped more than 90,000 cases to the BPCs. Labor certification applications with SWA receipt dates of 2003 and 2004 are scheduled to arrive at the BPCs by March 31, 2005. A third shipment of cases was added to be sent to the BPCs by April 22, 2005. This will not only include all labor certifications properly filed at the SWAs in 2005, but also cases opened by the SWAs that are yet to be completed. The DOL anticipates that no labor certification cases should remain with the SWAs after April 22, 2005.
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It is unclear at this time how many cases remain with the SWAs and whether they will be able to meet the shipping deadlines. Neither has the DOL provided any information on whether cases opened by the SWAs will be processed any differently from other unopened cases they receive. Therefore, it is possible they will simply place them in First-In / First-Out (FIFO) order along with the rest of the cases, as originally planned.
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Reminder on Postmarking Rule
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The February 16th memos reminded the SWAs that they should not accept and forward cases postmarked after March 27, 2005. Any cases the SWAs receive that have a postmark of March 28, 2005 or after, must be rejected and returned to the sender. If an applicant receives a case returned from the SWA because it was filed late, the applicant must complete PERM recruitment prior to submitting a PERM application with the DOL.
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SWAs Will Not Answer PERM Questions
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The SWAs have been instructed to forward all PERM-related questions to the federal DOL. Therefore, it is unlikely that SWAs will answer any questions related to PERM independently. Further, it is unclear how much information the DOL is providing to the SWAs, so any answers they provide may not match the DOL's interpretation and policy.
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BPC Letters
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Since the February 16th memos were directed to the SWAs, the DOL was silent on how long it may take them to issue 45-day letters on the cases that they receive by April 22, 2005. This will depend largely on how many cases ultimately are sent to the BPCs.
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We at The Law Office of Sheela Murthy, P.C. monitor the DOL transition closely, and update MurthyDotCom and MurthyBulletin readers as this process continues to affect so many employers and employees who have been waiting for years for the approval of their labor certification cases.