AILA Doc. No. 04082461 | Dated August 19, 2004
Dear Mr. Carlson:
The American Immigration Lawyers Association (AILA) submits this comment in response to the interim final rule published July 21, 2004 regarding the establishment of centralized processing centers for the purpose of reducing existing backlogs in permanent alien labor certification applications.
AILA is a voluntary bar association of more than 8,600 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's mission includes the advancement of the law pertaining to immigration and naturalization and the facilitation of justice in the field. AILA's members are well acquainted with the labor certification process, having significant experience representing and educating employers who have need of essential international personnel and the employees who meet those needs. The members of our association represent large and small businesses, academic institutions, research facilities and governmental entities that employ foreign nationals as well as U.S. workers. AILA is thus uniquely qualified to comment on DOL's proposed rule.
The Backlog Reduction Concept
AILA commends the Department for its commitment to implement a workable plan to reduce the national backlog of approximately 300,000 applications for alien labor certification. By expressly providing for the use of centralized processing centers to perform the functions of both the SWAs and the regional offices, USDOL hopes "to achieve efficiencies and economies of scale" and, at the same time, achieve a greater consistency in the processing of these applications and in the legal standards applied to these applications.
AILA wishes to emphasize its willingness to work with USDOL on the program's implementation, particularly in connection with identifying priorities and rolling out the program in accordance with stated goals.
Approaching Backlog Reduction
AILA has a number of questions about the new centralized processing centers and how applications will be processed at the centers - - particularly the manner in which the centers will process the numerous applications that will be received from the state offices (SWAs) and the regional offices of USDOL. Our concerns are in the areas of customer service, staff training, application processing, center operations, and selection of applications for processing. Central among these concerns is the fundamental fairness of the methodology used to select those applications to be processed at the centers.
A great part of customer service involves managing the expectations of users of the system and making users aware of the process. In this way, the user may rely on that knowledge to approach the process with confidence and authority. In the first instance, this means that employers and their representatives must know whether their application was selected for centralized processing and when the application was transferred to a centralized processing center. For this reason, employers - - and, where they are represented by counsel, their attorneys - - must immediately be given notice of an application's transfer from a SWA or regional office to a centralized processing center. Such notice should be provided by the transferring office at the time of the transfer or by the centralized processing center immediately on receipt of the application for processing.
Additionally, DOL should make its best efforts to make information available to users that explains the anticipated operations and staffing levels of the centralized processing centers. For example:
Of critical importance will be staff training. The most pressing unanswered questions include how staff training will be accomplished, who will be doing the training, who will be developing training materials, and how long a training program is contemplated to last. The Labor Certification process has always had it complexities, and the practice has become even more complicated in recent years as we must now understand the legal framework connecting not only the DOL regulations and the Technical Assistance Guide, but also various General Administration Letters and Training and Employment Guidance Letters, decisions of the Board of Alien Labor Certification Appeals, national office guidance, as well as varying interpretations of the once ten, and now six, certifying officers.
Ordering Backlog Reduction
Having experienced the significant hardships created for employers and employees by the ever-increasing delays in the processing of labor certification applications, we are all faced with the extremely difficult issue of determining the methodology for the identification of applications to be forwarded to the centralized processing centers. Because the regulation leaves unanswered the question as to which applications will be selected for centralized processing, a fair and just way must be found to offer relief to those who have been most adversely affected by the extreme delays.
With respect to variations of processing times, no methodology will completely eliminate the unfairness that marks current labor certification processing. But whatever methodology is used, the oldest cases should be processed first - - regardless of location in a SWA or regional office - - without compromising the viability or timeliness of the RIR and Special Handling programs as they currently function. The Department should strive for a "first in, first out" approach to backlog reduction within the outline of the priorities regarding types of cases already established through guidance and practice. Assuming the SWAs and the regions will continue processing applications, it is inevitable that disparities in processing times will result from the varying speeds with which all of the concerned offices are able to process those applications in their remaining caseloads. Additionally, continued funding of the SWAs and regional offices (or lack of funding for these offices) will undoubtedly impact the ability of these offices to continue to process those applications that remain. By following the date order to the closest extent possible, the affected community can maintain a reasonable expectation that the most egregious backlogs will be addressed first.
A further issue is the need for equitable application of some standard criteria to these applications, which may have been filed at any one of the more than fifty SWAs at any time during a five-year period. The standards applied to labor certification applications are deceptively simple: the regulations call for certification once an employer has proven that there are no US workers able, willing, and qualified for the position. However, the steps an employer must take to make that showing have changed significantly over the years that are now marked by thousands of pending applications. The centralized processing centers may be considering applications filed under any number of interpretive memos and guidance letters-the "Norris memo", the "Ziegler memos", the "Carlson memo," RIR guidelines, non-RIR standards, GALs, and TEGLs. It is almost impossible to apply the standard that was in place at the time of filing to many of the applications that will be considered by the centralized processing center. And yet some equitable standard that will involve examining the extent and good faith of the employer's effort to recruit US workers must be applied. Employers should not be penalized by adverse action on their applications at the centralized processing centers in situations where the employers have followed the policies of their regional certifying officer. While future goals for the processing of permanent applications may offer opportunities for improved consistency throughout the United States, it is important that DOL recognizes employers' reliance on regional practice.
Impact on Immigration
AILA also notes that the backlog reduction effort may have a tremendous adverse impact on the annual availability of employment-based visa numbers. USDOL correctly notes that much of its backlog is attributable to filings of applications for labor certification generated by the imposition of a sunset date on Section 245(i) of the INA, which caused a significant increase in filings on or near April 30, 2001. The "bubble" of the estimated 236,000 applications filed on or near April 30, 2001, as they are processed to certification, will create a substantial number of workers, in particular skilled and unskilled workers, who will be moving through the next stages of permanent residence processing. As these workers become eligible to file adjustment of status applications concurrently with their immigrant visa petitions, their introduction to the CIS rosters will seriously strain visa number availability in the employment-based categories and, at the same time, add an enormous workload to CIS's already overburdened system.
AILA, having worked closely with both agencies on their processing issues, commends the two agencies for working together on this issue to ensure that these cases do not have the combined effect of crippling both the backlog reduction effort and the employment-based immigrant product line at CIS. It is our hope that the two agencies will continue to work together and apply available resources to this effort.
In conclusion, we ask the USDOL to continue to work closely with those most affected by the backlogs as the agency defines and refines its approaches and processes for backlog reduction. The use of centralized processing centers may prove to be an important tool in the backlog reduction effort and we hope it can be used efficiently and effectively.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Cite as AILA Doc. No. 04082461.