DOL Backlog Reduction Plan
Employment and Training Administration
200 Constitution Ave. NW
Washington, D.C. 20210
February 24, 2000
ACTION
MEMORANDUM FOR THE DEPUTY SECRETARY
FROM:
RAYMOND L. BRAMUCCI
Assistant Secretary for Employment and Training
SUBJECT: Report to Congress on a Backlog Reduction Plan for
SUMMARY
Attached for Executive Clearance is a plan to reduce the backlog of unprocessed permanent labor certification applications. The plan describes a process by which the State Employment Security Agencies and the mployment and Training Administration will have eliminated the backlog of permanent cases by the endof FY 2001. The plan indicates that a new system for processing permanent cases will beimplemented in FY 2001.
The FY 2000 appropriations report directed the Department to submit a plan to Congress.
BACKGROUND
Since 1995, the permanent labor certification program has witnessed an increase in the backlog of applications to be processed as result of increased demand, decreased funding to states, and changes to INS regulations. In FY 1999 and FY 2000, Congress has provided the states with funds specifically for the purpose of first reducing and then eliminating the backlog. In the FY 2000 Appropriations report, Congress requested the Department to provide a plan for eliminating the backlog.
INTERESTED PARTIES, INCLUDING CONGRESSIONAL
The elimination of the backlog in the permanent program is of interest to the businesses which have applied for foreign workers. Lawyers involved in the process are also interested parties.
Backlog Reduction Plan
Background
The Foreign Labor Certification process for work-based immigration in the United States has been a "two-tiered" system involving both the State Employment Service Agencies (SESAs) and the U.S.Department of Labor for more than 30 years. In this process, the employer starts the process by applying to the SESA in the stare where the job opportunity is located. The SESA is responsible for reviewing the case for completeness, confirming that the employer was offering the proper "prevailing wage," and working with the employer to advertise the job opportunity and search the SESA's applicant file to adequately test the labor market to insure that there are no qualified U.S. workers available forthe position. After the SESA completestheir processing, the case is sent to the Department of Labor, where it is reviewed in detail to determine, amongother things, that the job being offered was not designed in such a manner that only the foreign worker was qualified for the job, and that the job was being legitimately offered to U.S. workers. After the review is completed at the federal level and the Department is assured that U.S. workers have been adequately considered for the job opportunity, the Department issues to the employer a labor certification which allows the employer to file a visa petition with INS thatrequests that the foreign worker be admitted into the United States to work.
States
Prior to 1997, thepermanent case backlog was manageable in size. Thestale backlog in FY 1995 was 32,139 and in FY 1996 was 39,775. In FY 1997 funds provided to states for thepurpose of processing foreign labor certification cases were reduced from $47,000,000 to $31,000,000. This 33 % reduction is program funding coincided with an economic expansion that produced record numbers of requests for foreign workers made in all labor certification programs: permanent, temporary professionals ( H-IB), temporary agricultural (H -2A), and temporary nonagricultural (H 2B). At the end of FY 1997, the permanent backlog had expanded to 57,100 cases. In FY 1998, thebacklog problem was further exacerbated by the elimination of the Immigration and Naturalization Service's regulation 245(i) which resulted in the receipt of over 100,000 cases during FY 1998 alone. This regulation was important to foreign workers because the regulation contained a provision that permitted foreign workers to utilize the 245(i) benefits, which allowed then case to be acted upon even if their legal status had ended, as long as theforeign worker had an application for labor certification in process prior to January 14, 1998. The permanent case backlog at the end of FY 1998 totaled 94,610.
In FY 1999, $5,000,000 above the requested funding level was provided to the states specifically for backlog reduction. This 16% increase was allocated to states with the largest backlog. In addition, General Administration Letter 1-97 (GAL 1-97). published Oct. 1, 1996 provided states withguidance to help increase productivity in the permanent program. This funding and additional guidance resulted in a 34% increase in state output of permanent cases in FY 1999.
State Foreign Labor Certification Permanent Program Activity
|
Fiscal Year |
Cases Completed |
Backlog |
|
|
|
|
|
1995 |
45,771 |
32,139 |
|
1996 |
55,245 |
39, 775 |
|
1997 |
51,116 |
57,100 |
|
1998 |
67,551 |
94,610 |
|
1999 |
77,979 |
75,400 |
Regional 0ffices
Immediately prior to FY 1995, regional offices were allocated 91 FTE to process foreign labor certification cases. By FY 1997, as a result of general reduction in Department of Labor staffing, the regional staffing level had beenreduced to 78 FTE, where it has remained through FY 1999. However, the number of cases received for processing in all labor certification programs in the regional offices began increasingsignificantly. The program which increased most during this period was the H-lB (temporary professional ) program. In 1998 Congress temporarily increased the quota for H- 1B workers allowed into the United States in a given year from 65,000 to 115,000. As a result of this quota increase, the case load in the H-1Bprogram increased from 97,000 in FY 1994 to 242,004 in FY 1998 and to over 350,000 in FY 1999 (Many employers apply to the Department of Labor for H-1B certifications in advance so that they are in a position to make a request to INS for a visa when they decide they actually need an H-1B worker). H-IB applications receive processing priority over permanent cases because of the legislated mandate to act on H-1B cases within seven working days of receipt. To maintain compliance with the H-1B processing mandate, there were periods during FY 1997 and 1998 when all regional labor certification staff were required to process H-1B applications, leaving no time to process permanent cases.
Backlog Reduction Actions Taken to Date
States
In late FY 1996, the Employment and Tram Administration published General Administration Letter 1-97 (GAL 1-97). This letter provided guidance to both the states and regional offices regarding various methods that could be used to streamline the processing of permanent cases under existing regulations. Prominent in the guidance was reemphasis on the "Reduction in Recruitment" (RIR) process. The RIR process decreased the time involved in processing cases because it relies on evidence provided by theemployer thata test of thelabor market has been done prior to the filing of the application, which eliminates the need for the state to advertise and collect resumes. This is the most time consuming portion of the state processing. The effectiveness of the GAL was demonstrated by the fact that the states processed over 51,000 cases in FY 1997, just 4000 fewer cases than the previous fiscal year despite the factthat state funding had been reduced by 33%, and in FY 1998 processed over 67,000 cases with no additional staffing,
In FY 1999, an increase of $5,000,000 was provided to reduce the backlog. These funds were allocated to the seven states who had 90% of thebacklog. This allocation of additional funds, combined with the continued utilization of the GAL 1-97 guidance, resulted in the statesprocessing almost 78,000 cases, more than any year in the history of the program.
Regional Offices
The guidance promulgated in GAL 1-97 was also beneficial to the regional offices. However, the effectiveness of GAL 1-97 in increasing the efficiency of case processing at the state level increased the number of incoming cases in the regional offices, since the guidelines promulgated in GAL 1-97 allowed states to forward to the regional offices more cases in FY 1998 than everbefore in the history of the program. This factor, coupled with the dramatic increase in H-1$ applications during FY 1997 to FY1999 period created a large backlog in permanent cases in the regional offices. In FY 1999, two major steps were taken to assist the regional offices in processing permanent cases:
- in February 1999, a system was implemented nationally which allowed employers to transmit H-1B applications (Labor Condition Application) via electronic facsimile and to receive a certification decision on their application by a return fax. As a result, over halfthe H-1B applications in FY1999 were via the new facsimile process (LCAfax). This electronic processing allowed many of the regional staff that had beenrequired to process H-1B applications to ensure compliance with the seven-day H-1B processing requirement to return to processing permanent cases.
- Also in February 1999, a priority "backlog reduction effort" was implemented in the regional offices by providing $500,000 for overtime andhiring temporary staff. Theseadditional funds allowed experienced analysts to concentrate on processing permanent cases. The success of the effort is evidenced by the fact that the regional officesprocessed over 72,000 cases in FY 1999, almost twice the 40,000 cases processed in FY 1998.
Plans of Backlog Reduction – FY 2000/FY 2001
States
Current Status
State Backlog as of December 1999: 67,701
An analysis of the state backlogs revealed that 10 states accounted for 88 % of the nation's total backlog. Those states and their permanent case backlog inmid-December, 1999, are as follows:
|
California |
16,940 |
|
New York |
13,726 |
|
New Jersey |
9,584 |
|
Texas |
5,530 |
|
Maryland |
3,068 |
|
Illinois |
2,928 |
|
Massachusetts |
2,450 |
|
Florida |
2,187 |
|
Michigan |
1,765 |
|
Connecticut |
1,492 |
|
|
|
|
Total |
59, 672 |
Plan for State Backlog Reduction:
- In FY 2000, Congress provided $5,000,000 over the FY 1999 funding level. ETA is utilizing these funds to directly address backlogs its these ten key statesby providing funds tothese states in excess of the FY 1999 allocation. A total amount of $4,200,000 has been distributed to these states in the same proportion as their portion of the total backlog forthe ten states, This amount is the major portion of the $5 million increase this fiscal year. The remainder will be distributed in the future to meet the greatest need. This strategy will focus available resources to those states with the most apparent need.
- A proposed regulation has beendeveloped which will allow employers who have applications in the backlog to advertise for the position using the Reduction in Recruitment process criteria and will allow states to process these applications as RIRs without the employer losing the application’s "priority date" as would occur under the current regulation. It is expected that many employers will take advantage of this opportunity to receive a faster decision on their certification application while maintaining their priority date. It is important to employers that the priority dates be retained because the Department of State processes visas in the order of the priority dates, and for foreign workers from certain high demand countries a loss of a few months in priority date can mean a loss of years in obtaining a visa. The RIR processing can be accomplished with a much higher degree of efficiency than the processing of anon-RIR permanent case. It is therefore expected that this proposed regulation will have a major impact onreducing the backlog. States and user representatives have indicated they are looking forward with anticipation to this regulation change. It is anticipated thatthe proposed rule will be published in March, 2000 and effective May 2000.
- In FY 2001, ETA will implement a system which will streamline the current "two tier" process in which the state agency first does preliminary review and processing and then forwards the case to the Federal level (regional office) for further review and final decision by eliminating the redundant preliminary state processing,
The following illustrates the Department's schedule of reducing the state backlog through these actions:
|
|
FY2000 |
FY 2001 |
|
Backlog beginning of year |
75,400 |
40,400 |
|
Incoming Cases |
55,000 |
27,000 |
|
Cases Processed |
90,000 |
67,400 |
|
Backlog end of year |
40,400 |
0 |
Regional Offices
Current Status:
Current regional office Backlog (1/21/00): 19,136
Projected Regional Permanent Program Activity
|
|
FY 000 |
FY 2001 |
|
Carry in |
18,314 |
26,314 |
|
New applications Received |
90,000 |
92,000 |
|
Rebuttal and Remands |
8,000 |
4,000 |
|
Applications Processed |
90,000 |
122,314 |
|
Backlog |
26,314 |
0 |
In FY 2000, it is projected that theregional offices will receive 90,000 cases as a result of backlog reduction efforts in the state. During the backlog reduction effort in FY 1999, the regional offices processed over 9,000 cases per month. Based on that output, we anticipate that by implementing the backlog reduction plan described below, regional offices can process 90,000 permanent cases each year. This will result in a backlog of 26,314 permanent cases in the regional offices at the end of FY 2000. By the end of FY 2001, we anticipate that states will have sent the remainder of the old cases filed under the current system to the regional offices. ETA will implement a new process in FY 2001 in which employers transmit permanent cases directly to the regional offices for processing. This procedure will require the regional offices to operate two separate programs after mid FY 2001 until all of the cases in the old system have been processed. For the new process to be successful, it is imperative that no backlog be allowed to develop, so processing of the new system must take priority over processing theold cases.
Regional Backlog Reduction Plan
Based on the success of the FY 1999 regional backlog reduction effort, the followingactions are planned for both FY 2000 and FY 2001:
- Regions have been instructed to assess cases by reviewing 7 "key elements" which determine the availability of U. S. workers.
- Regions have been instructed to "triage" incoming cases and act quickly on those cases for occupations in which there is no availability based on previous experience.
- In the near future, a regulation change will result in all LCAs being sent to service centers, which will have the result of increasing the number of staff available to process permanent cases.
- Funds will be provided to the regional offices for overtime and temporary hires.
- The streamlined program to be implemented in FY 2001 will allow employers who have casesin the current process to reapply using the new process without loss of the initial priority date. ETA anticipates that a large number of employers will takeadvantage of this opportunity in order to obtain their workers in an expedited manner, and this will significantly reduce the number of older cases being sent to the regional offices for processing.
Conclusion
If all the steps we have included in this plan are successfully completed, the backlogs at both the state and regional levels will be reduced to zero by the end of FY 2001. This also assumes that no new immigration programs or program requirements are created during this period.
ATTACHMENT II
Senate Subcommittee on Labor, Health and Human Services and Education
The Honorable Arlen Specter
Chairman, Subcommittee on Labor,
Health and Human Services, and Education
Committee on Appropriations.
United States Senate
Washington, D.C. 20510-3802The Honorable Tom Harkin
Ranking Minority Member, Subcommittee on Labor,
Health and Human Services, and Education
Committee on Appropriations
United States Senate
Washington, D.C. 20510-1502
House Subcommittee on Labor, Health and Human Services and Education
The Honorable John Edward Porter
Chairman- Subcommittee on Labor,
Health and Human Services, and Education
Committee on Appropriations
House of Representatives
Washington, D.C. 20510-1310The Honorable David R. Obey
Ranking Minority Member, Subcommittee on Labor,
Health and Human Services, and Education
Committee on Appropriations
House of Representatives
Washington. D.C. 20515-4907