DOL Backlog Processing Centers - April 2006 Update
Posted May 05, 2006
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The U.S. Department of Labor (DOL) has addressed some questions regarding ongoing case processing at the Backlog Processing Centers (BPCs) that will likely interest many of our MurthyDotCom and MurthyBulletin readers. Numerous reduction-in-recruitment or regular labor certification cases have been pending for years, and are now at the BPCs, leaving individuals anxious for any update on their cases.
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45-Day Letters / Data Entry by June 2006
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The DOL has projected a deadline of June 2006 for completion of data entry on all cases at the BPCs. Hopefully, this is a realistic deadline and they will be able to move forward and focus on case adjudications thereafter.
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Additional Resources to Eliminate Backlog by Sep 2007
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The DOL reports that they are "scaling up" resources dedicated to the elimination of backlog cases. Their stated deadline for eliminating the backlog is September 30, 2007. Based on what we at the Murthy Law Firm are experiencing, they are going to have to really increase their efforts, particularly in Pennsylvania, to meet this goal. They note that the work at the BPCs cannot be compared to the PERM case processing, since backlog cases receive full review, whereas the PERM cases are based upon attestations and primarily are technology-driven.
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Can I Refile under PERM and Preserve the Original Priority Date?
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Our firm receives many inquiries regarding the possibility of refiling a backlog center case under PERM. Presently, it is our general advice not to take the risk, as the priority date could be lost. While there is technically and legally a mechanism for refiling under PERM and requesting preservation of the priority date, as part of the process, the existing backlog center case is withdrawn, whether or not the PERM case is approved. If not approved, the original priority date is lost. The PERM case must be regarded as identical to the backlog center case. Since the forms are different and minor information, such as the employer's address may have changed, guidance is needed in order to provide more certainty about this process. Because of this ambiguity, many are opting not to try this procedure, thus leaving their cases pending in the BPCs where the processing is much slower.
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The DOL acknowledges that they are behind on issuing guidance on the precise meaning of "identical" in the PERM regulation. They state that such guidance is forthcoming. If clear and workable, this guidance could go a long way toward eliminating some of the BPCs' caseloads and helping many individuals to obtain their LC approvals and then file the I-140 petition. For individuals who are past the initial six years of H1B status, an approved I-140 permits filing for a three-year H1B extension. This is simpler and less expensive than having to file annual H1B extensions.
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Existence Checks
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The 45-day letters sent to employers to confirm an ongoing interest in the BPC case, also includes a request for information to verify the existence of the sponsoring employer. A question was asked about the acceptable proof, since the 45-day letters ask for the employer's articles of incorporation. The DOL advises that SEC Forms 10-K and annual reports (for publicly-traded companies) are acceptable. The existence check response must show that the company has operations in the location of intended employment, however. If the company is headquartered in one location, but the listed place of intended employment is elsewhere, perhaps at a branch office, then the proof must relate in some way to the area of intended employment for that employee.