As we announced in our October issue of our monthly newsletter, Spotlight, a Department of Labor (DOL) memorandum from Emily Stover DeRocco, Assistant Secretary for Employment and Training, indicated that the long-awaited PERM labor certification rule could be published before the end of 2004.  The DeRocco Memo also outlined DOL's plans to transition the more than 300,000 labor certification applications currently pending at the various State Workforce Agencies (SWAs) and the DOL Regional Offices to two national Backlog Reduction Centers (BRCs).  In October 2004, DOL staff met with representatives of the American Immigration Lawyers Association (AILA) to discuss the transition process to the new BRCs, plans for DOL restructuring and reorganization, and how the implementation of PERM would impact processing of cases.  The following is a summary of DOL's ongoing and planned activities, and their potential impact on both pending cases and cases now being prepared for filing.

For decades, DOL has used a two-tier processing system for all labor certification applications.  Applications are initially filed with a SWA, which does initial review and processing of the application, then transferred to a DOL Regional Office for final review and adjudication.  This two-tier process leads to duplication of work and delay, and has been viewed as a primary inefficiency of the present system.  In July 2004, DOL published an interim regulation that authorized the creation of national DOL processing centers that would be able to process cases pending both at the SWA level and at the Regional Offices.  These centers will allow DOL to consolidate the functions that have been divided between the SWA and Regional Offices, and is expected to create substantial efficiencies in the system.  Following publication of the new regulation, DOL proceeded to set up two Backlog Reduction Centers (BRCs) in Philadelphia, Pennsylvania and Dallas, Texas.

Backlog Reduction Centers

The two BRCs in Dallas and Philadelphia began operating in October 2004.  The BRCs are staffed with a combination of federal employees and contract staff:  Federal staff will adjudicate cases and contract staff will provide administrative support.   BRC staff are currently completing data entry of cases transferred to the BRCs from the Regional Offices.  Following initial data input, the next step in case processing will be generation of a Center Receipt Notification Letter (CRNL).  The CRNL will be sent to the attorney of record and to the employer to confirm the case location and to determine if the employer wishes to proceed with the case.  DOL anticipates that many of the backlogged cases are no longer viable, and if there is no response to a CRNL after 45 days, DOL will cancel the case.  DOL has transferred all pending cases from the Dallas and Philadelphia Regional Offices to the BRCs in each city.  DOL has also transferred approximately 20,000 cases from the San Francisco Regional Offices to the two BRCs; however, DOL did not announce how these cases have been distributed between the two BRCs nor have they provided notification on specific cases.

At both BRCs, DOL is adhering to a First In-First Out (FIFO) approach to ensure that all cases are treated equally with respect to priority dates (initial date of filing) and overall processing times.  While this approach assists backlogged states such as California, labor certifications filed with other states with faster processing times may be pending longer than they had previously. DOL anticipates publishing an announcement in the Federal Register that will provide more information about the distribution of cases at the BRCs and the order of case processing.  DOL has stated that it will fund the BRCs for at least two full years.  After that time, DOL anticipates that the BRCs will be closed, and any unprocessed cases at that time will be transferred to DOL's National Processing Centers for completion.  William Carlson, Chief of DOL's Division of Foreign Labor Certification, advised AILA that there will be "substantial and significant changes in processing during this fiscal year", so it is hoped that many of the cases that have languished in DOL's backlog will finally be processed.

After cases at the DOL Regional Offices are transferred to the BRCs, DOL will begin transferring the thousands of applications pending at the various SWAs to the BRCs for processing.  Even if PERM is not published as planned, the role of the SWAs will be greatly diminished in the near future.  While the SWAs will continue to accept applications for filing, they will no longer have an active role in the process.  Instead, the SWAs will log in cases as received, then transfer the cases to a DOL facility for processing.  DOL anticipates that at some point in the next year, the SWAs will cease accepting cases, and cases will be filed directly with DOL.  This will require publishing a regulation, which may be linked to the publishing of the PERM rule.

In addition to the two BRCs, DOL is establishing two National Processing Centers (Centers) in Chicago, Illinois and Atlanta, Georgia.  If and when PERM is implemented, the Centers will process all applications filed under PERM.  In addition to the BRC's planned PERM obligations, DOL is currently transferring all temporary labor certification processing (H-2A and H-2B)  to the Centers.  This transition is expected to be completed by the end of the year.

Assuming that DOL proceeds with its plans to publish the final PERM rule before the end of calendar year 2004, the rule will go into effect 60 days of publication.  At that time, the Centers would begin accepting PERM applications for processing.   If DOL does not publish the PERM rule this year as planned, the Atlanta and Chicago Centers will serve as additional BRCs until such time as PERM is implemented.

In addition to the new BRCs and Centers, DOL's New York and San Francisco Regional Offices will continue to process permanent cases until approximately January 2006, when DOL expects that the Regional Offices will be phased out of the Foreign Labor Certification Program.  DOL is currently integrating the computer systems for all offices into a uniform system, so that the FIFO rule may be applied consistently to cases processed at both the Regional Offices, BRCs, and National Centers.

What does this mean for pending cases?  For cases currently pending in DOL Regional Offices, there is likely to be substantial improvement in processing times, as there are now more staff and resources available to adjudicate these applications.  However, in the next few months, processing times may be subject to change and difficult to predict, as DOL must physically transfer cases to the BRCs for processing and the BRCs must input data and generate notices as described above.  For cases pending at the SWAs, until DOL announces its schedule for how these cases will be processed, there may be little or no movement forward on these queues until DOL has eliminated the backlog of cases from the Regional Offices.

How will this impact cases currently being prepared for filing?  The current regulations and filing rules are still in effect, so cases may still be submitted for processing; however, when DOL publishes the PERM rule, there will be only 60 days to file applications under the current regulations (RIR and non-RIR). This is a change from prior estimates that PERM would involve a 120 day implementation period.  Employers may want to consider filing labor certification applications under the regular process to establish a filing or priority date, then request to convert the case to the PERM processing system.  Alternatively, employers may want to wait until PERM is implemented and file under the PERM system.  Both of these options have some risk, as the exact details of PERM will not be known until the regulations are published.  Jackson & Hertogs will provide more information on changes at DOL as it becomes available.

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