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Department Of Labor (ETA)'s FY 2005 Transitional Guidance - State Guidance For Processing Labor Certifications

by Josie Gonzalez

With the release of FY 2005 Transitional Guidance, issued to the State Workforce Agency Administrators on September 29, 2004, DOL appears to realize that some of its labor certification PERM-related re-engineering efforts can be implemented today, without PERM regulations. The regulatory authority for the consolidation and realignment of state and regional offices was published in the Federal Register as an Interim Final Rule on July 21, 2004 in connection with the establishment of the Backlog Reduction Centers. (69 FR 43715, 7/21/04) This rule now supports the backlog reduction efforts contained in FY 2005 Transitional Guidance ("TG") regarding the consolidation of state and regional offices to central processing centers.

The TG sets forth guidance on the re-engineering efforts that will be implemented to transfer not only backlogged cases from the DOL regional offices and the State Workforce Administration Agencies (SWAs), but also new cases received at the SWA as of January 1, 2005. The seminal principle guiding the transfer of cases is "...the first-in, first-out (FIFO) principle, regardless of the location where a case was originally filed." DOL acknowledges what the user community has been saying all along - that this "is an equitable and fair approach to all applicants." To the maximum extent possible, transferred cases will be sent to the backlog centers in order of original filing date, and the oldest will be processed first.

Although the TG describes the "contingency" plan in the event PERM regulations are not published, much of the plan will be implemented immediately. This article contains a summary of the key provisions identified in the TG. It is unknown at this time to what extent the procedures and policies described in TG would be superseded by future directives triggered by the PERM regulations.

What If PERM Doesn't Get Implemented? -- The DOL's Contingency Plan

1. DOL/ETA will consolidate state and federal (regional) processing functions and move case processing to centralized locations.

2. There are currently two backlog elimination centers (Philadelphia and Dallas); federal staff from those regional offices have been moved to the backlog centers. Initially these Centers will work the regional office backlogs and thereafter handle cases currently backlogged at the SWAs. (Note that DOL has already shipped 20,000 backlogged labor certifications from the San Francisco Region VI office to these two centers.)

3. DOL/ETA is establishing National Processing centers in Atlanta and Chicago where all permanent labor certification applications, except for the backlogged cases earmarked for Dallas and Philadelphia, will be processed.

4. The role of the SWA:

a. As of January 1, 2005, the SWAs will not open any new permanent labor certification cases, but will merely "date stamp" and log the case and forward it to either Atlanta or Chicago. An attachment is provided which specifies which SWAs correspond to which center. For example, Washington State and California cases will be sent to Chicago.

b. Prior to January 1, 2005, completed cases will be forwarded to their respective DOL regional office, unless instructions are received to forward to one of the new centers.

c. As further clarified and expanded upon in Attachment 1, those SWAs that have the largest backlogs with the oldest priority dates will receive instructions in October 2004 for the shipment of "those unprocessed cases at the state level which have the earliest filing dates, regardless of geographic location." In other words, not only is it anticipated that the regional offices will immediately ship cases to the centers but so also will the state offices. The second and final batch of case shipments will begin in January 2005 and will include all permanent labor applications received by all states prior to December 31, 2004 which have not been opened by a SWA.

d. SWA cases still pending but not completed as of January 1, 2005, will be completed, but then forwarded to the designated Center.

e. The SWAs will continue to provide Prevailing Wage Determinations for permanent labor certifications, H-1Bs, H-2A and H-2Bs.

f. The SWAs will continue to process H-2A and H-2Bs.

5. The SWA budgets for 2004/2005 will be slashed by 50%, and there will be one full time employee at the SWA devoted to the transition program with responsibility for coordinating with the National Center and ensuring the shipment of cases to the center --either cases currently pending at the SWA or new filings. The SWAs must immediately adjust their staffing levels.

6. Attachment 1 states that as of March 31, 2005, the remaining SWA backlogged permanent labor certification applications either will be transferred to one of the two new backlog centers (Philadelphia and Dallas) or assigned to ETA staff in New York, Boston or San Francisco. (Additional sites, though not specifically mentioned here, are the two National Processing Centers, Atlanta or Chicago.)

What If The PERM Regulation Is Published?

The sole issue addressed in the event PERM is published is the schedule for the transfer of cases. On this point, the SWAs will be instructed to stop accepting applications for permanent labor certification 61 days after the publication of the regulation, and specific guidance will be forthcoming. Note, it thus appears that the implementation date will be 60 days after publication, not the 120 days originally anticipated.

Practical Repercussions Of FY 2005 Transitional Guidance

Although it isn't entirely clear which facility will be processing one's labor certification, it is clear that there is much movement afoot, and this movement should speed up adjudication. For those who are leery regarding whether the substantive aspects of the PERM regulations might impact the feasibility of specific labor certification filings, with such things as the possible elimination of "business necessity," experience gained on-the-job, related or alternate experience requirements, the 5% prevailing wage differential, one might consider filing now and get the benefit of faster processing. The brave new world of labor certifications is taking one giant step forward; let's hope the event is cause for celebration.

About The Author

Josie Gonzalez is the managing attorney of Gonzalez & Harris, a Los Angeles based immigration law firm that represents employers in all aspects of immigration law. She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. She served for nearly ten years on AILA's Board of Governors; has contributed as Chair, Co-Chair & member of various national liaison committees; has authored numerous articles for legal and trade journals; and served as Editor-in Chief for the David Stanton Manual on Labor Certification (1998). In 1999, she was recognized by AILA for "Excellence in Advancing the Practice of Immigration Law". Ms. Gonzalez is a frequent guest speaker to many trade and business organizations including PIHRA, the California Restaurant Association, the Employers Group, and the Employer Advisory Council. Ms. Gonzalez has been selected by her peers for inclusion in the inaugural issue of Southern California Super Lawyers®, and for over 10 years in The Best Lawyers in America.

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