Department of Labor to Change Labor Certification Processing in Fiscal Year 2005, Whether or Not PERM is Passed

The Department of Labor (DOL) has been talking about implementing PERM, or the Program Electronic Review Management System, since early 1999. Ever since DOL conceived of the PERM program, it has been promising that regulations would soon be promulgated to implement PERM. It was not until 2002 that DOL final published proposed PERM regulations. It was thought that shortly after they were published, DOL would publish a final rule implementing PERM. It is now 2004 and still no final rule has been published.

At this point, the PERM regulations are expected to be published by the end of calendar year 2004, and should be operational within 60 days of their publication. However, given DOL’s track record with implementing PERM, this may or may not happen.

When the final rule is published on PERM, it will streamline Labor Cert processing. In an effort to move toward that goal of streamlining Labor Certifications, even in the event that a final rule is not published, the Department of Labor has come up with a contingency plan that will change Labor Certification processing from a state-federal system into a federal system during FY 2005. This plan will only go into effect in the event that the PERM regulations are not published.

The Assistant Secretary for Employment and Training, Emily Stover DeRocco, issued a memo to State Workforce Agency Administrators apprising them of the plans to streamline Labor Cert processing during FY 2005. The Transition Guidance memo does not explain how PERM will change Labor Certification processing. To read the proposed regulations for PERM, visit http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=2002_register&docid=02-10570-filed. Rather, the memo explains that even if the PERM regulations are not adopted by the end of the calendar year, the Department of Labor will make changes to streamline Labor Certification processing. It details those changes.

There is also an excellent article explaining the proposed PERM regulations at http://www.ilw.com/lawyers/articles/2002,0516-Siskind.shtm.

Following are highlights from the memo. However, the full text of the memo is available at http://www.usvisahelp.com/nw/attach_1.pdf.

1. SWA’s will be responsible to accept Labor Certification applications, but will no longer be responsible for processing the applications.

2. Labor Cert. processing will shift from the SWA’s to a centralized federal location where federal and state processing will be consolidated.

3. The Department of Labor will establish Backlog Elimination Centers in Philadelphia and Dallas, and Labor Certification applications currently pending at the Federal level will be processed by the Backlog Elimination Centers. They will eventually handle backlogs from the SWA’s as well.

4. National Processing Centers will be established in Atlanta and Chicago where all applications (except for those processed through the Backlog Reduction Centers) will be processed. The national centers should be operational by the end of this year.

5. After January 1, 2005, if PERM is not published, the SWAs will continue to “date stamp” and log in any Labor Certs they receive for processing. They will then forward the new cases to the new Atlanta or Chicago National Processing Centers for adjudication.

6. The SWA’s will continue to be funded through FY 2005 to coordinate this transfer of cases to the federal processing centers, as well as to provide prevailing wage determinations (including for the H-1B program).

In short, this means that even if PERM is not passed, the Labor Certification processing procedures will be totally different starting on January 1, 2005. Labor Cert processing will be administered entirely by the federal government which, in theory at least, should cut down on the processing time. One definite result of these changes will be to introduce uniformity in Labor Certification processing times across the country. No longer will people in places like New York and Washington D.C. have to wait 2+ years for a Labor Certification approval while people in Boston and Denver only have to wait 2 months.

How Do I Read the Visa Bulletin?

Every month, the Department of State publishes a Visa Bulletin that summarizes the availability of immigrant visa numbers. The Visa Bulletin lists each family-based and employment-based category and shows the priority date of the petitions they are currently working on. By learning how to read the Visa Bulletin, you will be able to tell when an immigrant visa will be available for yourself or a family member or colleague.

We have posted a new article to our web site explaining how to read the Visa Bulletin, and linking to the current edition of the Visa Bulletin. Visit http://www.usvisahelp.com/art_prefcat.html to find out more.

Department of Labor Will Not Expedite Labor Certification Applications Under Any Circumstances

In 2002, Congress passed the Child Status Protection Act (CSPA), which did much to protect children who are close to turning 21 and thereby “aging out,” or losing eligibility for immigrant visas based on their age. For more information on the Child Status Protection Act, visit http://www.usvisahelp.com/nw/Volume%201,%20Issue%205.pdf. There is an article on CSPA on page 2.

The CSPA protects both children on whose behalf I-130 family-based petitions have been filed, and the dependent children of adults who have employment-based I-140 petitions pending with USCIS2. But before an I-140 petition can be filed on behalf of most aliens, the aliens’ employers must file Labor Certification applications on their behalf. CSPA protection does not apply to aliens’ children until after their Labor Certs have been approved and their I-140 petitions have been filed.

The Department of Labor (DOL) has had significant backlogs in processing. In some cases, it takes DOL over 2 years to certify Labor Certs. Therefore, while the DOL has had a general policy of not expediting processing of Labor Certifications, some offices would make exceptions to the “no expedite” policy in cases where the child of the alien on whose behalf the Labor Cert was filed is in danger of “aging out” and losing CSPA eligibility.

But the Department of Labor has put an end to this humane practice. On October 4, 2004, DOL issued a memo reminding its Certifying Officers (who are responsible for Labor Cert adjudication) that under no circumstances are they to expedite Labor Cert applications. This rule applies not only to age-out cases, but also to situations where expediting the Labor Cert would allow a child to remain in the United States to receive needed medical treatment, or to prevent the alien beneficiary from being deported. The policy in the memo is effective immediately upon issuance.

Phone Lines Will Soon Open Back Up at USCIS Regional Service Centers, and an E-mail Inquiry System Will Be Added

Prior to the creation of USCIS, and for a few months after its inception, INS always made its officers available to the public by telephone. If we received a receipt or approval notice with an error, we could call the Service Center and speak to an Information Officer who was familiar with immigration law and service center processing procedures. The officer could correct the problem and issue a new notice. We could call if a case had not yet been processed but should have been, according to the Service Center’s processing reports. We took for granted the fact that we could speak to someone whose job it was to provide bona fide customer service.

CSPA also applies to the children of religious workers for whom I-360 petitions, not I-140 petitions, are filed.

Shortly after the creation of the Department of Homeland Security and the transition from INS to USCIS, however, the National Customer Service Center (NCSC) was created. USCIS touted the development of NCSC as a great development in customer service because it could be accessed through a 1-800 number and had a large staff; it would be easier to get through to the 1-800 number than it had been to get through to the local numbers at the regional service centers.

But what USCIS did not tell the public, is that the people they hired to work at the NCSC know nothing about either immigration law or about each service center’s processing procedures. Yes, they are easier to access by telephone, but once you talk to them, you get nowhere. They can read processing time report dates to you from the internet. (But you can access these yourself at https://egov.immigration.gov/cris/jsps/ptimes.jsp;jsessionid=dVnyHKPXZwYc). Apart from this, the people at the 1-800 number know nothing. For even the simplest problems, such as a Service error on a receipt notice, the NCSC staff instruct the public to send letters to the regional service center that is adjudicating the case.

Jim Eiss went on a tour of the Vermont Service Center recently and was told that they have received so many letters from people that they will never get through them. They asked the attorneys on the tour not to send any more letters, as they will not be read.

The good news from Jim’s tour, however, is that Vermont intends to bring phones back to the service centers before Christmas 2004. They have realized the NCSC has been an unsuccessful experiment. This will once again give the public meaningful access to immigration officers who can help them. The Nebraska Service Center has also reported that it intends to bring the phone lines back to their office within the next few months. We can only assume that the other two service centers in Texas and California will follow suit. This is wonderful news, as most logistical problems are impossible to solve through NCSC.

In addition to setting the phone lines back up, the Vermont Service Center reports that it will develop an e-mail inquiry system so that some problems can be addressed electronically rather than by phone.

Diversity Visa 2006 Registration to Open November 5, 2004

Registration for the Diversity Visa (DV) 2006 lottery will be open November 5, 2004 to January 7, 2005. Registration applications must be filed electronically at www.dvlottery.state.gov during this period. Paper entries are not accepted. The Diversity Visa program is designed to grant permanent resident status immigrants from regions with lower rates of immigration. For DV 2006, aliens from the following countries may not apply, because they are from countries that sent over 50,000 immigrants to the U.S. in the last 5 years: Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Being picked or “winning” the DV lottery does not guarantee issuance of a visa. After being picked, each applicant must prove that he is eligible to receive an immigrant visa. There are 50,000 DV visas available for FY 2006. However, more than 50,000 applicants will “win” the lottery, on the assumption that some will not respond or will respond and will not qualify. Therefore anyone who wins the lottery should not make plans to come to the United States (such as buying plane tickets or selling belongings) until after he or she has actually received an immigrant visa.

Nonimmigrants currently in the U.S. may apply for the Diversity Visa Lottery. A person can have a DV lottery application pending at the same time as another type of immigrant visa application. By doing this, the applicant has the option of getting a visa based on whichever application is approved first. (However, each person can submit only one entry to the DV lottery per year; anyone who submits multiple applications in a single year will be disqualified). However, people who hold certain nonimmigrant statuses, or who plan to hold certain nonimmigrant statuses in the future, should beware of filing a Diversity Visa application. The Diversity Visa program issues permanent resident status to winning applicants. Therefore, anyone who files a DV application must necessarily have immigrant intent. It is inconsistent with some nonimmigrant statuses, such as a B1/B2 “visitor” status to have immigrant intent. See http://www.usvisahelp.com/art_intent.html.

Complete instructions for entering the DV 2006 are available at www.state.gov/r/pa/prs/ps/2004/36613pf.htm.