The new PERM system for obtaining labor certifications continues to confound employers. More than one month into the program, the Department of Labor (DOL) has not approved a single case. Thousands, however, have been summarily denied by the on-line filing system. When a case is denied, the on-line system does not respond to the applicant with a reason why. Instead, the case is routed to an analyst who will then prepare and forward the employer a written summary of the reason or reasons for the denial. It has only been in the last few days that employers have begun to receive written denial letters.
While many practitioners to date have been concerned about the audit system, it appears that the real issue to focus on will be avoiding a summary denial. Fortunately, unlike the old system, the PERM system does not require an applicant to wait any period of time to re-file a denied case.
Further, and more encouragingly, the on-line system is not denying all of the submitted cases. Many cases are now “Pending Sponsorship,” which is the DOL’s new term assigned to PERM cases awaiting adjudication. The DOL is making progress, albeit slowly, in getting the PERM system up and running. The world of labor certification did not end on March 28, 2005. Certainly, obtaining an approved labor certification through the new system will likely be much more difficult than under the previous RIR and traditional tracks. Nonetheless, it will not be impossible and labor certification should remain a viable immigration option for employers willing to work through the challenges of the new process.
The DOL Backlog Reduction Centers (BRC), where the traditional and RIR cases filed under the pre-PERM system now await adjudication, continue to be an enigma. Although the BRC only have funding through the end of 2006, they have not begun to approve any of the cases they now hold. To date, the BRC have been proceeding at a snail’s pace in verifying that the cases they now hold are in fact still pending on behalf of an employer who has not yet gone out of business.
The BRC have been confirming the continued existence of employers by sending continuation letters to companies and their attorneys to confirm that the case should continue to be processed. While this has helped them to streamline the queue of cases awaiting adjudication, it has also resulted in the BRC denying a limited number of cases for which no continuation letter was received by the employer or their attorney. Since there is currently no direct BRC liaison with the immigration bar, the BRCs procedures for correcting such mistakes have not yet been made clear.
The two BRC centers in Dallas and Philadelphia are clearly a mess. Most of the persons who were previously processing labor certifications at the state and regional level through March of 2005 have now lost their job. This was not a surprise to them. In their final days at work, they were asked to box whatever files remained in their offices and forward these to the BRC. In their zeal to attach the importance to this task that the sacked employees deemed it to deserve, the state and federal labor certification teams sent the BRC 330,000 boxes, many of them unmarked. Some of the boxes were found to contain files and others were found to contain old coffee cups, candy wrappers, and half-eaten bags of snacks.
Although they are not yet fully staffed, each BRC is authorized to hire and train up to 200 adjudicators. 330,000 boxes divided among 400 adjudicators would leave 825 boxes of cases for each adjudicator to process in the next year and a half.
At some point, the DOL will sort out its problems at the BRC on its own or under pressure from Congress or from the Federal Courts. In the interim, the problems are obvious. It will be impossible for the DOL to process cases in the order in which they were originally filed at the state level. Instead, they appear to be trying to process cases in the order in which they were filed at the state level AFTER having been sorted by the continuation letter process. Also, it will be impossible for the DOL to quickly locate a traditional or RIR file to verify if an employer seeking to convert to the PERM system has filed an identical case. Nonetheless, it will be impossible for the DOL to stall forever. At some point in the next year and half, they must begin actively adjudicating cases. A failure to do so would lead not only to agency embarrassment but also would increase the likelihood that the DOL’s role in the immigration process will be reduced in the future.
Citizenship and Immigration Services (CIS) has clarified its policy in allocating the 20,000 additional FY 2005 H-1B visas authorized under the L-1 Visa and H-1B Visa Reform Act. An additional 20,000 visas are immediately available in the current fiscal year to employees who have earned a masters degree or higher from a U.S. university. These visas can only be requested through the Vermont Service Center. The CIS has also implemented a procedure to convert a case already filed with a FY 2006 start date request to a case eligible for immediate H-1B employment.
Employees holding only a bachelor’s or a foreign degree who are requesting H-1B status for the first time will not be eligible to begin lawful employment prior to October 1, 2005, which is the start of the 2006 fiscal year.
An additional development which may relieve some of the pressure on the H-1B cap in going forward is the creation of the new E-3 category for nationals of Australia under the REAL ID act. Under this category, up to 10,500 Australians may enter the U.S. to work in occupations similar to those allowed under the current H-1B program.
The REAL ID act is now law. The biggest impact on most people of the legislation is that it will cause state departments of motor vehicles to change the way they do business in issuing drivers licenses. These changes will not occur immediately, but eventually the processes will become more complicated, requiring more forms of identification, requiring more detailed information be provided from immigration authorities to DMV offices before a license is issued, and resulting in non-citizens receiving licenses for only as long as authorization to be in the United States is granted. The Act also makes it harder for asylum seekers to be granted asylum, makes it easier for the government to deport persons it believes are terrorists or sympathetic to terrorists, and makes it more difficult for people wronged by the immigration system, particularly aliens who have committed crimes, to sue the government to right wrongs committed against them.