Labor Certifications Closed in Error : DOL Responds
Posted Jun 16, 2006
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The U.S. Department of Labor (DOL) issued a letter on June 1, 2006 regarding backlog processing center (BPC) labor certifications (LCs) that were closed in error. The letter is in response to a final demand for action, under threat of a lawsuit, from the American Immigration Law Foundation (AILF). AILF threatened to file a lawsuit against the DOL unless there was a policy change.
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AILF raised several problems that need to be corrected by the DOL. Among these is the fact that the BPC has closed LCs for failure to respond to the DOL's 45-day letter when the employers and/or attorneys in these cases never received the 45-day letter. Another problem cited by AILF is in cases where the BPC issued the 45-day letters and the employers filed their responses timely, but the DOL incorrectly closed the cases stating that there was a failure to respond. This was caused by various mail and data processing backlogs that prevented the responses from being entered into the system in a timely fashion. The result was that the cases were denied for failure to respond, notwithstanding their proper responses. The DOL letter addresses the first scenario, in which 45-day letters were not received, but does not address the latter situation.
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DOL RESPONSE
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45-day Letters to Continue
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The DOL response first confirms its position that the 45-day letter has been a valuable tool in ascertaining whether employers are still interested in pursuing their labor certification cases. Based upon what the DOL considers to be success with the 45-day letters in reducing the backlog, they intend to continue utilizing the system.
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Recognition of Problem
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The DOL acknowledges that, in the course of handling tens of thousands of letters, there have been situations in which the 45-day letters were not received by the attorney or company, through no fault of that attorney or company. The DOL admits that the closing of these cases "may not" have been warranted.
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Solution and Procedure
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In those cases where a 45-day letter is not received, the LC case can be reopened if the DOL is notified within 30 days of receipt of the case-closure letter. The notification must state that the 45-day letter was not received and that the employer wishes to continue processing.
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Other Situations
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The DOL simply states that other requests for reopening will be addressed on a case-by-case basis. They indicate that they will communicate with AILF regarding other circumstances that might justify case reopening.
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CONCLUSION
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The Murthy Law Firm has long supported AILF and its mission. Attorney Murthy currently serves on AILF's Board of Trustees. We appreciate the efforts of that nonprofit organization in this matter, resulting in a partial resolution of the incorrect closure of LC cases. The DOL response is a good start toward fixing one problem with the BPCs that has been faced by many employers and employees. It has been extremely difficult for individuals and employers to wait several years for a decision, only to have the case closed improperly. We note that the DOL deadline of 30 days to respond to the closure letter is rather short, and, in all fairness, that it should have been at least the same 45-day period permitted to respond to a continuation letter. There needs to be an efficient way for the DOL to reopen cases that have been pending for years in many instances, which were closed due to DOL's own error. We hope that the DOL will continue to consider a simple, straightforward resolution for cases that were closed despite the employers' having responded properly.
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