DOL Sends Transition Plan to SWAs
Posted Oct 22, 2004
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The U.S. Department of Labor (DOL) recently released a Memorandum dated September 29, 2004 (SWA Memo) to all State Workforce Agencies (SWAs) that outlines the transition plan for labor certification processing during Fiscal Year 2005. The SWA Memo provides both a description of what will happen if PERM is implemented and, alternatively, a plan that will be used if PERM is not implemented.
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If PERM is implemented without changes in the version that is at the Office of Management and Budget (OMB), the SWAs will stop accepting labor certification applications 61 days after PERM is published in the Federal Register. The SWAs will continue their work on those aspects of the nonimmigrant programs that are within their province. DOL expects PERM to be issued prior to the end of the 2004 calendar year and to be operational within 60 days of publication. This 60-day estimate is half as long as the 120 days that DOL previously anticipated, and it is not clear whether this time estimate only refers to SWA functions or the entire PERM program. It is expected that PERM cases will be sent to PERM centers in Atlanta and Chicago. The SWAs will be responsible for providing prevailing wage determinations, but the mechanics of how they will provide this information has not yet been explained.
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If PERM is not implemented the role of SWAs will still change significantly under the plan outlined in the SWA Memo. Currently, the SWAs complete initial processing on labor certifications by performing tasks including, but not limited to, assessing whether the labor certifications are properly filed as Reduction in Recruitment (RIR) cases, overseeing recruitment in regular labor certification cases, assigning job codes to the described positions, and determining whether the cases have the proper prevailing wages. Under current procedures the cases then are sent to a Federal Regional office for final certification.
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The DOL, however, intends to fully use the Backlog Reduction Interim Final Rule to transfer existing cases to the Backlog Elimination Centers (BECs) in Philadelphia and Dallas and to send newly filed cases to National Processing Centers (NPCs) in Atlanta and Chicago. This means that, whether PERM centers or NPCs are created, Atlanta and Chicago are expected to become the hub of all future labor certification processing by the end of the calendar year.
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The DOL is already in the process of moving to the BECs in Philadelphia and Dallas. They expect to publish a Notice in the Federal Register within the next few weeks to provide mailing addresses and contact information for these backlog elimination centers.
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SWA funding from the DOL for labor certifications is being cut by approximately 50%, and the SWAs are directed to use at least some of this funding for a full-time employee who will coordinate the transition from a state / federal system to a primarily federally-administered system. This SWA employee will coordinate the shipping of pending labor certification cases that are with the SWAs. In the absence of PERM, the SWA employee will also coordinate sending cases that will continue to be received by the SWAs to the appropriate NPC. The remaining funds are to be used to process cases opened through January 1, 2005, and the processing of old cases that are not transferred to a BEC.
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Prior to January 1, 2005, SWAs are directed to continue accepting and processing labor certification cases. Cases still "open" on that date will be processed as normal until they are ready to be forwarded to the applicable NPC. Cases not open will go to one of the BECs or to foreign labor certification staff in New York, Boston, or San Francisco.
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The SWAs are instructed to date-stamp labor certification applications they receive after January 1, 2005, but to forward them directly to one of the NPCs without further action. The DOL expects to publish a notice in the Federal Register that labor certifications filed with the SWAs after January 1, 2005 will be sent to the NPCs for processing. Presumably, this Notice will not be published until there is a final decision on whether PERM will be implemented.
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Under this plan, as with the PERM plan, the SWAs will still continue their nonimmigrant-related work.
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While cases transferred to the BECs will continue to be processed on RIR or regular labor certification tracks, the DOL will use a first-in / first-out (FIFO) principle in processing all cases, regardless of where a case was originally filed. This means that no one should be forum shopping for the fastest jurisdiction under this plan. Cases from the San Francisco DOL office will be sent to both of the BECs, as this office has some of the oldest cases in the country.
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SWAs will start receiving directions in October 2004 on how and when to send cases to Philadelphia or Dallas. Initially, cases at the SWAs with the earliest filing dates, regardless of geographic location, will be transferred to the BECs. These cases should start moving at the end of October 2004. Not all SWAs will be affected by this first move as the DOL is trying to get the oldest cases moved first. After the oldest cases are processed, additional cases will be transferred between January 2005 and March 2005. These cases will include all labor certifications received by the SWAs prior to December 31, 2004, on which the SWA had not started work.
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Cases from the SWAs in Alabama, Georgia, Massachusetts, New York, Rhode Island, Virgin Islands, Connecticut, Kentucky, Mississippi, North Carolina, South Carolina, Virginia, Delaware, Maine, New Hampshire, Pennsylvania, Tennessee, Washington D.C., Florida, Maryland, New Jersey, Puerto Rico, Vermont, and West Virginia are currently assigned to send their labor certifications to the National Processing Center in Atlanta, as and when directed.
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Cases from the Alaska, Colorado, Illinois, Louisiana, Montana, North Dakota, South Dakota, Wisconsin, Arizona, Guam, Indiana, Michigan, Nebraska, Ohio, Texas, Wyoming, Arkansas, Hawaii, Iowa, Minnesota, Nevada, Oklahoma, Utah, California, Idaho, Kansas, Missouri, New Mexico, Oregon, and Washington SWAs are currently assigned to send their labor certifications to the National Processing Center in Chicago, as and when directed.
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While no legal interpretations of DOL rules and regulations are being changed under the SWA Memo if PERM is not implemented, the procedural changes may impact how cases are processed. Many SWAs had slightly different viewpoints on the application of the labor certification laws and regulations, as did the regional DOL offices. With only the two Backlog Elimination Centers that are expected to close once the backlog elimination is complete, and the two National Processing Centers, greater consistency can be expected in terms of both the interpretation of rules and the processing times.
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We at The Law Office of Sheela Murthy, P.C., will continue to monitor these important developments and report to you whether the PERM or the non-PERM plan will be implemented. We will continue to assess the implications for our MurthyDotCom and MurthyBulletin readers.