BPCs Continue Approving Cases - August 5-12, 2005
Posted Aug 19, 2005
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The Law Office of Sheela Murthy is always pleased to share good news with our readers. At this time, we continue to receive labor certification approvals from the Backlog Processing Centers (BPCs). As regular readers of MurthyDotCom and the MurthyBulletin know, the LC approval is the first major step towards permanent resident status, or the "green card," in the United States. We announced in our July 15, 2005 article, Backlog Processing Centers Approving Labor Cases, available on MurthyDotCom, that the U.S. Department of Labor (DOL) Backlog Processing Centers had begun to approve pending labor certification (LC) cases. The pace of approvals seems to have picked up. Our mail received from Friday, August 5 through Thursday, August 11, inclusive, contained ten approvals from the BPCs. There seems to be a delay of a few weeks between the time a case is certified and the date it is received at our Office. Many of the cases we received in early August 2005 were approved in mid-July 2005.
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Philadelphia BPC Approvals
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Of the ten approvals we received during that seven-day period, three were processed through the Philadelphia BPC. Two of these cases initially had been filed in Maryland in September 2001. The other case had a priority date of May 31, 2001. Thus, while the BPCs are supposed to be operating on a First-In / First-Out (FIFO) basis, the system seems to generally reflect older cases, but not be a precise FIFO system at this point.
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Dallas BPC Approvals
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Six of our ten approvals were from the Dallas BPC. Again, the priority dates of the cases reflect adjudication of older cases, though it is not clear if they are strictly following the FIFO process in adjudicating cases. The range of priority dates for the six labor certification approvals from the BPC at Dallas, Texas was from mid-July 2002 to December 2002.
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California Satellite Office
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We also received an LC approval from the California satellite office. This case had a priority date of December 30, 2002.
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More Approvals from Dallas than Philadelphia
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In an unscientific exchange of information with other AILA attorneys, it seems that they, too, are receiving more approvals from Dallas than from Philadelphia. There were reports from attorneys receiving approvals from the Dallas BPC in late July and early August 2005 with priority dates ranging from September to December 2002. Most did not describe receiving any approvals from the Philadelphia BPC.
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PERM Approval
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We at The Law Office of Sheela Murthy have also begun to see movement in the PERM process. We are happy to share that a PERM approval was recently received at our Office. Although many attorneys initially complained about the problems and denials with PERM, it appears that some cases are now progressing while many others are in the audit phase. The entry into the audit phase appears to depend upon various factors including containing job requirements that are beyond the DOL range for job requirements.
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Retrogression More Likely with Approvals
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The issuance of labor certification approvals from the BPCs ties directly to concerns about visa number retrogression and unavailability. MurthyDotCom visitors were provided with updated information in our August 11, 2005 NewsFlash, EB2 Numbers Available in September 2005 - Uncertain Future, available on MurthyDotCom. This followed the release of the September 2005 Visa Bulletin from the U.S. Department of State. [The most recent Visa Bulletin is always available on MurthyDotCom.] People lucky enough to receive one of the long-awaited BPC labor certification approvals in the EB2 category need to move quickly to get the I-140 and I-485 filed. If they wait, the EB2 visa numbers are likely to retrogress, especially for nationals of India and mainland China, causing a potential for delay in the ability to file the I-485. The same advice essentially holds true for EB3 cases. While there have not been any EB3 visa numbers available since July 1, 2005, there will likely be new numbers available for the next fiscal year (FY), which begins October 1, 2005, possibly with a cut-off date for nationals of India, mainland China, and even the Philippines. Since the labor certifications being approved by the BPCs have older priority dates, however, it is likely there will be visa numbers available for at least some of those cases. Thus, people who obtain EB3 approvals should have their employers move forward to file the I-140 without delay, and prepare to file the I-485, or go ahead and file if the priority dates are current for their cut-off dates.
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One of the reasons for retrogression and visa unavailability is the increased demand for visa numbers due to USCIS backlog reduction efforts. The BPC approvals will also fuel this demand, as more cases reach the stage where they are eligible for potential I-485 filing. Essentially, labor certification approvals will be coming from two directions, PERM and the BPCs, creating a greater demand for visa numbers.
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DOL's Recent Position on No Second Case Allowed
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The issuance of BPC approvals has become even more important, in light of a new FAQ procedural announcement from the U.S. Department of Labor, released in the second week of August 2005. [See More PERM FAQs from DOL : August 2005, also a MurthyBulletin article from Aug 08, 2005.] Essentially, the DOL announced that they will not certify more than one labor certification per foreign national, per sponsoring employer. Thus, while it is possible to have labor certifications pending with more than one employer, problems can arise from having more than one case filed through the same employer. The DOL clarified that it does not matter if the job offer is different; they look only at the fact that the employer and the employee are the same. This is a change from the long-standing past policy of allowing multiple filings as long as the job opportunities were different. There are also constitutional and due-process concerns over the legal validity of the DOL position, which contradicts the law and the fact that the more recently- filed case may contain the correct job duties of the person instead of a case filed three or four years ago.
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What this means, in part, for one with a BPC case is that, if the employer re-files the case under PERM without withdrawing the BPC case, the approval of the PERM case will then likely cause a Notice of Findings (NOF) to be issued on the BPC case. Conversely, if a BPC case is approved, any case filed under PERM will be denied. The issue here goes back to priority dates. If there were not problems with availability of priority dates, any labor certification would clear the way for a green card filing. With priority dates being a big issue, however, the approval of a labor certification with a recent priority date can be quite different from having an approval with an earlier priority date.
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Conclusion
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We will continue to update MurthyDotCom and MurthyBulletin readers on the PERM and BPC approvals as we receive them here at The Law Office of Sheela Murthy. We know that many of our readers are anxious to see movement in the 340,000 cases sent to the BPCs for adjudication.