Backlog Processing Centers - May 2005 Update
Posted Jun 03, 2005
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We at The Law Office of Sheela Murthy recently received an update on the operations and progress being made at the U.S. Department of Labor (DOL) Backlog Processing Centers (BPCs) located near Philadelphia and in Dallas. The latest information on the BPCs came from the DOL at an American Immigration Lawyers Association (AILA) meeting in Washington DC on Monday, May 23, 2005. In attendance were many of the attorneys from our Office and senior DOL officials, including Mr. William Carlson, Chief of the Foreign Labor Certification Unit, and Mr. Bill Raybung, who is in charge of the BPC operations, among others.
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This article focuses on the progress of the BPCs in an attempt to enlighten the many people who are in the dark with regard to what is going on with their LC cases that were filed and have been pending for a couple of years or even longer.
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Number of Cases at BPCs
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The DOL originally anticipated receiving 300,000 labor certification cases from the states and DOL regions to the BPCs. The number has actually reached at least 340,000, due to a large number of unexpected filings made between January 1, 2005 and March 27, 2005. During that period, there were approximately 40,000 labor certification cases filed under the previous, non-PERM system in order to qualify before that option expired. The DOL reports that there are still a small number of cases at the DOL Regional Offices in Boston, New York, Denver, and San Francisco, but that these offices are winding down and just working on select cases. These cases will likely be closed by the end of the calendar year 2005. This is consistent with the receipt of a few case approvals that came to The Law Office of Sheela Murthy from the San Francisco Regional Office after the BPCs were established. The DOL will send a final "last call letter" to each state to make sure that all cases been forwarded to the BPCs.
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In the meeting, the DOL stated that BPCs are continuing to increase their productivity and the numbers of cases where action has been completed. We note that, to date, our Office has not received a single case adjudication from either of the BPCs. An informal survey of other AILA members present at that May 23, 2005 meeting confirmed this as a similar experience.
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45-Day Letters Not in FIFO Order, nor Even by State
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As of May 23, 2005, the BPCs had entered about half of the cases into their system. The rest of the cases are still in boxes, waiting to be entered. In an attempt to create some record of each case, the DOL has hired more staff to do an abbreviated data entry. These cases will be given temporary identifications so that the BPCs can confirm whether a case is in the Dallas or Philadelphia center. Though states were instructed to send cases in First-In / First-Out (FIFO) order, some states were unable to do so. Therefore, it is possible that a case filed in a particular state in 2004 may received the 45-day letter from the BPC before a case that was filed in the same state in 2002. The DOL will attempt to provide more information on their website regarding exactly when BPCs received cases from the states and the date ranges of the shipments that they received.
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Completed Cases and Errors in Closing Cases
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To date, the BPCs have completed action on 12,000 cases. This figure, however, includes cases on which they have received voluntary withdrawals in response to the 45-day letters to employers requesting verification of continued interest in pursuing the case. It also includes cases that were otherwise closed due to, for example, non-receipt of response to the 45-day letters.
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There was a rather vigorous discussion about the many cases where either the employer or the attorney had submitted responses to the 45-day letters but the DOL had closed the case in error for failure to respond! Many attorneys voiced their concerns about the problems surrounding this issue. The DOL has not devised an efficient system for fixing this matter, particularly for obtaining proof that the case has been reopened, much to the frustration of all parties concerned. The DOL indicated that the sending of these "closed" letters was a computer glitch and stated that, if proof of the response to the 45-day letter is sent, the case will be "reset" and a letter will be issued to that effect. This reopening will not change the priority date. It is certainly hoped that this problem with the DOL will discontinue, that previously erroneously closed cases will be reopened without difficulty, and that systems will be put into place so that proof of the reopening will be sent in an efficient manner to the employer and the attorney. Given this issue, the number of completed cases may be overstated.
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Faster and Better Service Anticipated
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The DOL reported that their weekly production rates and IT systems are improving. DOL is also working with the USCIS to determine acceptable proof that a labor certification has been filed in order for USCIS to grant one-year incremental extensions of H1B status to qualified persons who filed labor certifications more than 365 days prior. This is additional critical and time-sensitive evidence that the DOL is required to provide so that the USCIS may approve H1B extensions for eligible H1B employees. Recently, the DOL confirmed that, if the employer is able to provide certain details, like the employer and employee name and the date and state where the labor certification was originally filed, the DOL should be able to provide the necessary evidence to enable an employer to file the annual incremental H1B extension. They may even work out a system of posting certain information on the DOL website that would be acceptable to the USCIS in this regard.
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Conclusion
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We thank Bill Raybung at the DOL for the update and insights on the BPC operations. Of course, there are concerns over the fact that half the cases remain untouched, without data entry having been started and with no way of confirming their locations. We look forward to the time when the BPC will be able to perform its function and purpose of clearing out the backlog of previously filed labor certification cases at the earliest, but are pleased that the BPCs appear be reaching the point where work on case adjudications has begun.