Update from DOL re BEC and PERM.

Backlog Elimination Center Update

According to the DOL, there are only about 200 pending cases left that are in recruitment and awaiting an NOF response. This excludes lost cases where members may be in discussion with the Department of Labor to have them reopened. Almost 364,000 cases were processed, with about 200,000 of them being certified and 17,000 of them being denied and the remaining cases withdrawn or abandoned. According to the DOL, appeal levels are extremely low.

The BEC in Dallas and Philadelphia are now closed and the completed cases were forwarded to federal records centers. Any pending cases at BALCA are now at the Chicago National Processing Center and the remaining 200 cases are being handled at the DOL National Office in Washington.

The DOL BEC Public Disclosure System (PDS) on the DOL ETA website is still active and available for case status checks, but may just show active appeals in the future. The new DOL email address for questions regarding BEC cases is bec.chicago@doleta.gov.

General DOL Update

Specialization of the NPCs

In the summer of 2008, the DOL is going to be specializing the work of the two National Processing Centers in order to better manage the TEMP (H-2A and H-2B) and PERM Programs. The DOL will be doing this by having Chicago handle only temporary cases and Atlanta handling only permanent cases. This will, the DOL hopes, remove the need to coordinate processing dates for H-2Bs between the two centers. This will ensure that H-2B visas are fairly allocated across the country.

National Processing Center Update (LCA and TEMP)

Requests to withdraw an LCA through mail should be sent to Temporary Programs Manager at the DOL national office in Washington DC- 200 Constitution Ave., N.W. Room C-4312, Washington DC 20210, online withdrawal is also acceptable. Also, the DOL is soon going to release an “acceptable survey names” list for the prevailing wage source fields on the LCA. This will help employers put accurate information on the LCA and avoid rejections.

PERM Update

The new ETA 9089 form will be released in summer 2008. The DOL acknowledges the increase in audits by the NPCs 44% of the cases were on “audit review” as of 12/31/2007. According to the DOL, this is done in an attempt to fully implement the regulations of the PERM program as well as to ensure the integrity of the PERM program.

Processing Times

The normal processing time of a “clean” case is still within 45- 60 days, according to the DOL, although audited cases may take longer. Furthermore, if a case has a pending motion to reconsider or an appeal, the waiting time is about one year; the DOL expects this time to be reduced by the end of 2008 when more staff is hired and trained.

Registration and Sponsorship

In order to communicate with the DOL about registration issues, one must use the regular email address. Because of new changes that have been made, the response time for registration issues should be much faster. If a sponsorship email notification is not received, the DOL must be emailed and notified. In case of any systematic issues regarding the emails, an email should be sent to plc.help@dol.gov.

Email Notification of Certified Cases

A new email feature has recently been added by the DOL where members now receive email notifications when cases have been certified.

Internal Posting Notice

The USCIS notice about the format of the internal posting is not correct and should NOT be relied upon by employers, the DOL has stated. To find the correct format, employers should go to DOL FAQ and regulation information when preparing the internal posting for PERM cases and Schedule A cases.

SVP/ONET and Job Zone Issues

AILA and DOL are currently in discussions about the methodology for determining what is a normal requirement for an occupation. It appears that DOL considers Job Zone 4 to be equivalent to SVP 7. Any requirements higher than a Master’s degree and no experience or a Bachelor’s degree with two years experience, should be justified by business necessity documentation.

“Erroneous” DOL Denials

If an application has been denied due to what seems to be an error on the DOL’s part, a motion to reconsider/appeal must be filed or the application can be filed again. Although there is no mechanism to clear up such “erroneous” denials, the DOL does not have any plans to implement a system where this may be avoided, mainly due to lack of resources. The DOL plans on maintaining the FIFO processing at this time.

ETA 9089 Form – System Features

In November 2006, DOL improved the online ETA 9089 form in order to prevent typos and submission of forms with missing information. However, applicants must be careful because the system is not able to catch all typographical errors, therefore it is important to ensure that applicants review the Form ETA 9089 carefully before submitting the same to DOL.

Procedure for Objecting to a DOL Withdrawal Request E-Mail

If an employer submits a second PERM application for the same employee because it considers the second application to be a different job opportunity, the employer may receive an email from DOL requesting the employer to withdraw the first case. If the employer does not wish to withdraw the second case as the employer considers the second application a different job opportunity. The employer must respond to the email and refuse to withdraw the case, which in turn will cause the DOL to deny the second case. The employer must then file a motion to reconsider and challenge DOLs finding that the jobs on both applications are the same.

Advertisement Requirements

According to the DOL, ads do not have to contain all the requirements that listed on the Form ETA 9089. The ads must be specific enough to apprise the workers of the job opening. The DOL will not provide specific advice on what is acceptable content. If an employer is denied a 9089 because of the fact that the ad was “not apprising workers of the job opening”, the employer may file a motion to reconsider the decision.

Change of Attorney on a Post-Filing, Pre-Approval PERM Case

If an employer changes the attorney, after the filing and prior to approval of the PERM case, the new attorney can file a G-28 with an audit response. However, at this time, the DOL cannot change the name of the attorney in the system, which means the final decision may still be mailed to the former attorney.

Special Handling for College and University Teachers

The DOL confirmed that the recruitment requires a PRINT advertisement. DOL will not accept al online ad in lieu of a print ad. Also, as long as all the required regulatory information is contained in the documentation, the summary report may be in a single report format.