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Practice Note
Problems With PERM And Labor Certification Cases in the Backlog Elimination Centers

On Thursday, February 2, 2006, the Department of Labor Liaison Committee of American Immigration Lawyers’ Association had a telephonic meeting with John Beverly, Acting Chief, Division of Foreign Labor Certification, and several staff members from the labor certification program.

The Committee conveyed very strongly the level of frustration members are feeling with important issues that are not yet resolved in the PERM system. Mr. Beverly apologized for the delays in dealing with many of these issues, and committed to working with the committee to resolve them in the near future.

The Committee noted that AILA has recently sent over 700 PERM and BEC cases to the DOL that illustrated problems in the two programs, including: PERM cases taking more than 90 days to be adjudicated; PERM cases denied on clearly erroneous grounds; PERM cases where no sponsorship verification has yet to be conducted at all; PERM cases where sponsorship questions were never received and the applications were denied for failure of the employer to respond to the sponsorship questions; and BEC cases with 45-day continuation letter problems, including closures where continuation letters were never received by the employer or representative, closures where 45-day letter responses were sent, and closures where the reply time had not yet expired.

The DOL continued to be noncommittal with respect to resolution of BEC cases with denials related to the handling and mishandling of 45-day continuation letters. Mr. Beverly did suggest that BEC representatives and AILA get together in the near future for a "solution-finding" discussion. We also discussed the difficulty in getting screen shots corrected as to priority date or other issues in connection with H-lB extensions beyond 6 years.

With respect to PERM cases that have been pending for more than 90 days with no action, including those where there has been no sponsorship verification and those where sponsorship verification has been conducted, Mr. Beverly committed to have a response to AILA within the next week.

The Committee asked the Department to update us on the status of their procedures for dealing with motions to reconsider "clear error" denials, and to deal with appeals of substantive denials. Mr. Beverly stated that the procedures for processing appeals and motions have not been finalized, but that they would be within the next 4-6 weeks and that an FAQ would be forthcoming and that we would see some movement on PERM cases for which appeals and/or motions to reopen or reconsider have been filed.

The Committee asked the Department why in January several PERM cases were mailed out with a cover letter indicating the application had been certified, but no labor certification was attached. The Department explained that a human error in the Chicago office resulted in the endorsed ETA 9089 being sent to the employer rather than the representative. The Department believes that problem has been resolved. The DOL noted that for cases in which the certified application is not received by either the employer or the attorney, the cover letter can be sent to USCIS with the I-140 and a request for DHS to inquire with DOL through channels. It appears that the USCIS has been responding to this problem in a timely manner.

Since almost the entire call was spent on process and procedure, the Committee emphasized the need to deal with some of the substantive agenda items/issues in the very near future, and DOL suggested that a date will be forthcoming. While little new substantive information was presented on the call, the Department continued to express willingness to work with AILA to resolve these outstanding issues.

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