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Practice Note

Department of Labor published an Interim Final Rule for its backlog reduction plan for labor certification cases in the Federal Register on July 21, 2004. The Rule will become effective on August 20, 2004.

This amendment to the regulations governing labor certification applications will allow the National Certifying Officer to transfer to a centralized ETA processing center(s) applications now awaiting processing by State Workforce Agencies (SWAs) or ETA Regional Offices. This interim final rule does not affect the pending proposal to streamline procedures for permanent labor certification under 20 CFR part 656, which was published in the Federal Register of May 6, 2002, and which is expected to be finalized in 2004. This interim final rule affects only applications filed under existing regulations, while the streamlined certification regulation will govern processing of new applications filed after that regulation takes effect

On May 6, 2002, the DOL published a Notice of Proposed Rulemaking (NPRM) to substantially streamline part 656, which governs the labor certification program. That proposed streamlined certification regulation, which is expected to be finalized in 2004, will ``implement a new system for filing and processing'' labor certification applications. Among other things, State Workforce Agencies will no longer receive or process applications as they do under the current system, and employers will be required to conduct recruitment before filing applications. The new processing system will apply to all applications for permanent labor certifications filed on or after the revised regulation's effective date. The Interim Rule will not alter the separate streamlined certification regulation, but rather is focused on reduction of the backlog of labor certification applications filed under existing regulations with State Workforce Agencies.

According to the introduction part of the Rule, ETA's Permanent Labor Certification Program is currently experiencing an enormous backlog in pending applications. This backlog largely stems from the sunset of Section 245(i) of the INA. The sunset rules of 245(i) allow aliens who entered the US without inspection or who fall within certain statutory categories to adjust their status to that of a permanent resident if a labor certification application was filed on their behalf with a SWA on or before April 30, 2001. It is estimated that approximately 236,000 applications were filed to meet the deadline of April 30, 2001, at a time when less than 100,000 applications were filed in an entire year. At the start of April 2003, over 280,00 labor certification applications were in the SWA processing queues throughout the nation, with another 30,000 applications in the various ETA Regional Office queues.

To address the backlog, ETA funded a study to identify strategic options and estimate costs. The study recommended establishing centralized processing centers to achieve the economies of scale inherent in processing large numbers of applications in one location and in consolidating the functions currently performed separately by the SWAs and the ETA Regional Offices. Building upon this recommendation, ETA initiated a pilot program testing the feasibility of centralized processing, which indicated that substantial time and economic savings could be achieved.

Accordingly, this interim final rule will allow that the National Certifying Officer (Chief, Division of Foreign Labor Certification) has the discretion to direct SWAs and ETA Regional Offices to transfer pending labor certification applications to centralized processing centers for completion of processing. The centralized processing centers will perform the required functions of the SWAs and ETA Regional Certifying Officers, consolidating steps now performed separately by the SWAs and the ETA Regional Offices to achieve efficiencies and economies of scale. The Chief will issue a directive to SWAs and the ETA Regional Offices stating how pending applications are to be identified for centralized processing, and where they are to be sent. The extent of centralized processing and the speed with which the current backlog will be reduced may vary based upon program priorities.

Centralized processing will not alter substantive requirements for certification. It will not impose an additional burden on employers who have filed permanent labor certification applications or on the immigrant aliens on whose behalf applications have been filed. Rather, centralized processing is expected to benefit applicants by reducing anticipated processing time only.

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