DOL's Deadline for 45-Day Letters is Reached
Posted Jul 28, 2006
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The U.S. Department of Labor (DOL) set a deadline of July 21, 2006 for the 45-day continuation letters. As of that date, all employers or their attorneys should have received the 45-day continuation letter. We most recently reported on this topic in our July 21, 2006 MurthyBulletin article, All 45-Day Letters to be Received by July 21, 2006, available on MurthyDotCom. Since that deadline has now elapsed, we at the Murthy Law Firm have assessed how many of our cases continue to have 45-day letter issues.
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Cases with No Receipt of 45-Day Letters
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We found that, as of July 21, 2006, approximately seven percent (7%) of the pending labor certification cases at our firm did not receive their 45-day letters or any other communication regarding the 45-day letters. This means that these cases received neither a 45-day letter, nor a closure letter. Some of the cases did not receive letters due to a DOL freeze on the filing.
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The Murthy Law Firm recently learned that some of the cases that did not receive 45-day letters were intentionally frozen by the DOL due to multiple filings. The DOL is better able now than in the past to identify multiple cases filed in different jurisdictions by an employer for a particular beneficiary. They have advised us that these cases are, for the time being, frozen in the system. As of this writing, there has been no communication from the DOL regarding these cases. Thus, some of the cases that did not receive 45-day letters are attributable to this freeze. One possible remedy appears to be for the employer to decide on the case that will be pursued, and to withdraw the other/s. Of course, this decision should be made after consultation with a qualified and experienced immigration attorney to carefully weigh the pros and cons of each option.
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Erroneous DOL Closures Now Have System to Reopen Cases
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Apart from those cases that did not receive 45-day letters, are those that were closed in error. Some of these did not receive 45-day letters, but, nonetheless, were closed for failure to respond to their 45-day letters. Others received 45-day letters and filed timely responses, but were closed in error for non-receipt of the responses. According to the DOL, these problems affected a small percentage of the total cases - approximately two to three percent (2-3%). Before the DOL provided procedures for addressing this problem, however, reopening was quite difficult. Obviously, this was a serious setback for the employer and employee involved.
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We at the Murthy Law Firm were successful through diligence and persistence in reopening some of the affected cases prior to the procedures established by the DOL. These were covered in our July 21, 2006 MurthyBulletin article, DOL Announces New Process To Reopen Erroneously Closed Cases, also available on MurthyDotCom. We hope that the remaining cases will be resolved in a more streamlined manner, now that the DOL has devised a more uniform mechanism for requesting the reopening of these cases.
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Future - Expect Faster Processing of BPC Cases
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The DOL has indicated that, once the 45-day letters are completed, they will be adjudicating the pending labor certification cases at a faster pace. We have not seen any signs of an increase in decisions, but will continue to track this movement to report any changes to our MurthyDotCom and MurthyBulletin readers.