Interim Final Rule on Backlog Reduction Published
Posted Jul 23, 2004
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On July 21, 2004, the U.S. Department of Labor (DOL) published the interim final rule implementing its labor certification backlog reduction plan. For those unaware of why a backlog reduction plan is necessary, there are thousands of labor certifications and RIR applications pending at the various state and federal DOL regional offices, some since 2001, that are yet to be processed. The goal of the DOL is to complete the processing of most such LC and RIR cases within approximately two years after PERM is implemented. To clear the backlogs, DOL has decided to create two centralized backlog reduction processing sites as mentioned in the interim final rule.
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The interim final rule will become effective 30 days from the date it was published. A comment period is also open during that time, but it is unlikely that there will be many changes at the final rule stage.
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The backlog reduction plan amends the regulations to permit the National Certifying Officer (NCO), who is the Chief of the Division of Foreign Labor Certifications, to direct a State Workforce Agency (SWA), or a federal regional office to transfer a pending application or set of pending applications to a centralized processing site. Essentially, it grants the power to move the backlogged cases either from a SWA or a federal region to a new, centralized processing center.
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Procedure for Processing Cases at the Backlog Centers
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The NCO will issue a directive to the SWA or regional office regarding how to identify the cases to be transferred. For each case transferred from an SWA, the centralized processing site will complete all the functions normally performed by the SWA and the Regional Certifying Officer. If the case is unique or complex, the central processing site will consult with the NCO, who may assume responsibility for completion of the case. The NCO may also direct that certain types of cases be sent from their respective centralized processing sites to the national office of the Department of Labor. We also note that, although cases can be transferred from the SWAs, the DOL has stated that the plan is to transfer cases initially from regional offices, as explained below.
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Locations of Backlog Reduction Centers
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As previously indicated in our June 18, 2004 MurthyBulletin article entitled, Labor Certification Update - 2004, available on MurthyDotCom, the DOL has stated that there will be two central processing sites. One will be in Philadelphia, PA, and the other will be in Dallas, TX. This backlog reduction plan will only apply to cases filed under the current procedures. The plan will not apply to cases that will be filed under PERM, when the PERM regulation is finalized. It is likely that PERM will not be published until the fall, and it is still expected that the implementation of PERM will not occur until 120 days after the PERM rule is published in the Federal Register.
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We do not expect that all cases caught in the backlog will be sent immediately to the central processing sites. The NCO is permitted to send cases to these sites, but is not required to do so. As detailed in the earlier MurthyBulletin article, cited above, the DOL intends to send cases from the Philadelphia and Dallas federal regions to these centers first, followed by cases from the Atlanta, GA and Chicago, IL federal regions. Atlanta and Chicago are also expected to be the two future homes of centralized PERM processing centers. After those case transfers are complete, cases from other regions may be added. Since the NCO has discretion in this matter, however, this plan may change at any time.
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Timeframes for Completing Backlog Processing
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DOL officials have stated that the goal is to try and complete all LC and RIR backlog processing within 2 years of PERM's implementation. The rule itself, however, does not give a timeline for the completion of processing backlogged cases. The comments on the rule state that "the extent of centralized processing and the speed with which the current backlog will be reduced may vary based upon program priorities." Therefore, it may be some time before we can determine the effectiveness of this system and see any change in processing backlogs of labor certifications and RIR applications for permanent residency.
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Conclusion
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We at The Law Office of Sheela Murthy, P.C. will continue to closely monitor the law and procedures, as well as our own cases, for any changes that are tied to the centralized processing and backlog reduction. We, in turn, will pass that information along to MurthyDotCom and MurthyBulletin readers.