Labor Certification Processing Times And Strategies
As we enter into Spring of 2003, many are concerned about the backlog in the processing of labor certification applications. The people most concerned are beneficiaries of labor certification applications, filed mainly in New York and New Jersey, who have been waiting upwards of two years.
As a background, labor certification is generally the first step when an employer sponsors a foreign employee for a green card. In order to obtain labor certification, the employer must establish that it was unable to find sufficient US workers for the position.
There are generally two ways for an employer to file a labor certification application. The traditional method involves the employer filing an application with a State Workforce Agency (SWA). After the application is reviewed, the SWA closely supervises the employer’s recruitment effort to find out whether US workers are available for the position or not.
The fast track method, known as Request for Reduction in Recruitment (RIR), allows the employer to establish unavailability of US workers through its own recruitment method prior to filing the application with the SWA.
In both the traditional and RIR filings, the federal Regional office of the Department of Labor (DOL) ultimately reviews the application and has the authority to either grant or deny labor certification.
Prior to an immigration filing deadline of April 30, 2001 under Section 245(i), the SWAs saw a huge surge of labor certification filings resulting in an unprecedented backlog. Until recently, most SWAs across the US were still processing RIR applications filed in April 2001. Cases filed under the traditional method were even further backlogged. Thus, many people have been waiting now for two years or more waiting for an initial review from SWA.
Many SWAs across the country are now reporting that they have crossed the April 2001 barrier and have moved many months ahead. Some SWAs are processing cases that were filed even in late 2002. Unfortunately, the SWAs in New York and New Jersey are still processing fast track RIR cases that were filed in April 2001. The New York SWA is processing some traditional cases that were filed in September 1999.
In a recent meeting of THE AILA-NY Chapter on February 3, 2003, with Joanne Palmieri of the NY SWA and Dolores DeHaan of DOL Region I, we learned that although the processing dates in New York and New Jersey were officially at April 2001, the New York SWA has moved into May 2001 for the processing of RIR applications involving professionals. In fact, the New York SWA has “triaged” cases into those involving professionals, household workers and everybody else. While RIR cases for household workers and everybody else is at April 2001, the professional cases have moved into May 2001.
Specifically, with respect to private household positions, the New York SWA is working on cases filed on or before April 25, 2001. The processing times for “everybody else” in the New York SWA is between April 20 and April 25, 2001. On the other hand, the backlog for traditionally filed cases involving professionals is September 1999. However, the traditional backlog for all other occupations is February 2001. These dates are based on information received at the February 3, AILA-NY Chapter meeting.
The New Jersey SWA is also expected to clear its April 2001 backlog, as reported by Ms. DeHaan at the February 3 meeting. In fact, some RIR cases that were filed in May 2001 are now being processed in New Jersey. The traditional backlog in the New Jersey SWA is also April 2001.
Once the cases are processed by the SWAs in New York and New Jersey, they are reviewed by the Regional Office of the DOL. The processing time of the DOL office in Region I, which has jurisdiction over New York and New Jersey, is current. The problem is that the SWAs in New York and New Jersey continue to experience severe backlogs. One has to wait for years for the SWAs to process the case before it arrived in DOL Region I, where it is reviewed very quickly.
Despite the backlogs, practitioners could well adopt smart strategies to help their clients remain in status. The Department of Justice (DOJ) Appropriations Act of November 2, 2002, amended Section 106(a) of the American Competitiveness in the 21st Century Act (AC21). Amended Section 106(a) would now allow a 7th-year H-1B extension as long as a labor certification application was filed 365 days prior to the 6th-year. Prior to the amendment, an I-140 employment-based immigrant visa petition also had to be filed. Thus, even though a foreign worker may be approaching the H-1B time limitation, the fact that a labor certification application filed 365 days prior is still pending would allow increments of one-year beyond the 6th-year. The New York and New Jersey SWAs will issue confirmation that a labor certification application has been filed. The attorney may request this confirmation to the New York or New Jersey SWAs via fax prior to submitting the 7th-year H-1B extension request with the new Bureau of Citizen and Immigration Services.
Although RIR cases are moving faster than traditional cases, many employers who have announced layoffs are reluctant to represent to the DOL that there is a lack of availability of US workers. An employer, who may be reluctant to file a RIR-based application, may still file a traditional application and wait for the SWA to supervise the recruitment. Although there may be layoffs within the company and the industry, an employer may still wish to sponsor a foreign worker for a green card who has unique and specialized skills that may still not be found in the US work force. By the time a SWA in New York or New Jersey gets to review a traditional case, more than two years would have elapsed at least in New York or New Jersey, and hopefully the economy may have improved by then. In the meantime, the foreign worker’s H-1B status could be extended beyond six years by virtue of a labor certification application being filed 365 days prior to the 6th-year.
Finally, Ms. DeHaan announced that the DOL’s new PERM program would get implemented in October 2003. This program would allow labor certification applications to be processed and approved within weeks rather than years. Instead of the DOL reviewing or supervising the employer’s recruitment, under the PERM program, the employer would have to make attestations that it has conducted a good faith recruitment in accordance with the new regulations. Under PERM, even though the case may be approved in a few weeks, the DOL may still flag such a case for an audit. Thus, people whose applications have been pending for years may be able to convert them into the new PERM program if implemented in October 2003.
If conversion is not possible, it may be possible to file a fresh labor certification application under the PERM program. At this point of time, all the priority dates under the employment-based second and third preferences are current. The Department of State has also recently in an e-mail to AILA projected that the employment-based categories will remain current (with the possible exception of the other worker category) through at least the end of FY 2004. Thus, it may not matter that a new priority date is established as a result of a new filing. But PERM may be a completely different animal from current labor certification procedures. If the proposed rules of PERM take effect over the objections of several commentators, an employer may not be able to justify restrictive or excessive job requirements through business necessity, among many other changes. Furthermore, the employer’s advertisements under PERM would also have to meet specific requirements such as stating the salary and advertising on Sundays.
Regardless of PERM, a traditionally filed labor certification application filed on or before August 3, 2001, could presently be converted to an RIR. One must be cautioned, though, that the conversion request would not put the case at the front of the queue. It would be treated as if one were filing a new RIR application and would be put in the RIR backlog instead of the traditional backlog. Thus, if one’s traditional case is coming up for review, it would be best to leave it as a traditionally filed application rather than convert it into an RIR. Suppose one has a traditional case filed in September 1999, it will come up for review shortly. If the employer requests that it be converted to an RIR in New York, the SWA will put the case in the RIR backlog, which at this point of time in New York is still officially April 2001.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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