As our readers already know, the U.S. Department of Labor ("DOL") issued a rule on July 21, 2004 that created Backlog Elimination Centers. These BECs opened their doors in January 2005 with the mission of receiving and processing all pending traditional or conventional and Reduction in Recruitment (RiR) labor certifications that U.S. employers had filed with state labor departments before March 28, 2005. (On March 28, 2005 the PERM labor certification application process became the only available application process.)
By regulation, employers could elect to: (1) leave their pending applications with DOL BECs for processing; (2) convert such applications to PERM applications if all aspects of the job remained identical (employer, title, duties, requirements, location) and seek to retain the priority date under the EB2 or EB3 immigrant quota system; or (3) file a new application under PERM and not retain the original priority (filing) date.
We can report the following based upon recent case experience and based upon a recent liaison meeting between the U.S. Department of Labor and the American Immigration Lawyers Association (AILA), to which we belong:
DOL has been approving some cases at the backlog reduction center, and we have been steadily receiving a number of these. To date, these have been (a) traditional or conventional cases for which all recruitment was complete at the time that the state labor department transferred the case to the BEC and (b) RiR applications. Not all cases fitting this profile have been located and decided by DOL, however, so you should not be unduly concerned if your case fits this profile and has not been decided;
Before it proceeds in earnest with all other pending conventional and RiR cases, DOL is completing data entry on all cases. After it completes the data entry stage, it will then issue a 45-day letter asking the U.S. employer to elect to withdraw or continue with its pending application. DOL anticipates completing this phase by June 2006. Our nonscientific observation is that we have, at most, received 45-day letters on roughly about half of all cases that our clients have pending at the BECs;
DOL's original estimate was to complete and decide ALL cases at the two BECs by between January 2007 and June 2007. This is still possible if DOL sends 45-day letters to all remaining applicants by June 2006, but DOL has not specifically commented on whether its original estimate to complete all cases is still achievable. Most recently, in late February 2006, DOL has posted a statement that all cases will be completed by September 30, 2007; and
Once DOL receives the response to its 45-day letters, the next steps for traditional or conventional cases would historically involve DOL determination of the prevailing wage and a decision whether the employer needs to make changes to the application (increasing the wage offered, modifying the jobs requirements, etc.) or whether the recruitment phase can begin. For RiR cases, DOL would determine if the already completed recruitment was sufficient, if the case involved a shortage application, and whether the case could be decided "as is" or additional recruitment was necessary.