PERM & Labor Certification Re-Engineering
Update

For several years now the Department of Labor (DOL) has been advising immigration attorneys that the labor certification program will be re-engineered in order to more efficiently process applications. Re-engineering is to occur in two phases: backlog reduction and implementation of PERM (Program Electronic Review Management). Backlog reduction measures are underway and the PERM final rule appears imminent. PERM is expected to provide speedy processing through electronic filing, which is a welcomed benefit, but in the proposed rule format there are many unwelcome provisions as well. Since the final regulation has yet to be published, it is unknown whether all of the proposed PERM provisions will take effect. We do, however, know from the DOL that PERM will be implemented sixty days after publication of the final rule in the Federal Register. At this time, there is nothing that needs to be done in anticipation of these changes that we are not already doing.

Phase one of the re-engineering program, the establishment of two national Backlog Reduction Centers (BRCs), became operational in October 2004. The BRCs are located in Philadelphia and Dallas and are expected to handle the backlogged labor certification applications on a first-in-first-out basis, starting with cases currently pending at the DOL regional offices and then moving to cases pending at the state workforce agencies (SWAs). Based on recent DOL information, the BRCs are now inputting data for the initially transferred cases. When this task is completed, the BRCs will mail notices to employers and attorneys to advise of case transfer and to check whether the application is still viable. Timely response to these notices will be imperative, as a failure to do so will terminate the application.

All labor certification applications filed by our office have attorney representation forms attached, so we expect to receive transfer notification. Nonetheless, we recommend that employers keep an eye out for BRC notices, in case of a data input error. To minimize the chance of error, our office has been proactive by contacting SWAs and DOL regional offices to assure that the agencies have correct address information for every one of our cases.

According to DOL reports there are about 310,000 backlogged cases nationwide. The agency expects to complete shipment of these cases to the BRCs by March 2005 and anticipates that the backlog will be eliminated within two years. At that point, the BRCs will have served their purpose and will be closed.

The second phase of the re-engineering program, the establishment of two National Processing Centers (NPCs) is in progress. One NPC is in Chicago and the other is in Atlanta. These centers will process PERM cases when PERM is implemented, which as noted above will be 60 days after publication of the final rule in the Federal Register. Until implementation, the NPCs in conjunction with the BRCs will continue to process pending cases.

In anticipation of PERM and the phase out of the SWAs, the DOL issued transition guidelines in late October in the "FY 2005 Transition Guidance" memorandum. Pursuant to the memo, the SWAs will continue to accept, work on and forward labor certification applications to the NPCs until 01/01/05. Cases received after 01/01/05 but before implementation of PERM will be accepted by the SWAs for date stamping and log in purposes only and will no longer be processed at the state level. On the sixty- first (61st) day after publication of the PERM final regulation, the SWAs will stop accepting labor certification applications and remaining cases will be shipped to the BRCs. From that date forward, all applications will have to be filed under PERM rules and will be processed by the NPCs.

Our office will continue to monitor labor certification re-engineering developments and will provide updated information, as such information becomes available.