Backlog Reduction Program: The Backlog Reduction Program is meant to deal with over 300,000 pending cases in the nationwide backlog, which includes both RIR and regular labor certification. An interim regulation in July 2004 paved the way for the establishment of two Backlog Reduction Centers (BRC) in Philadelphia and Dallas, which will be staffed by the personnel of those cities' DOL regional offices. The centers will consolidate the State and Regional functions in single Federal locations, with the goal of completing adjudication of the entire backlog in two years.

At present, labor certification cases are first filed with a State Workforce Agency (SWA), which evaluates the case and, in regular labor certification, conducts supervised recruitment. The reviewed case is then transmitted to the Federal regional office, where a second evaluation takes place before final adjudication.

Regional Offices: In a special Transitional Guidance issued in late September, DOL announced that the BRC's would begin with cases backlogged at regional offices. Several regional offices (including San Francisco, Philadelphia, and Dallas) report large shipments of pending cases transferred to the BRC's. Other than the clear directive that cases will be processed in "first in, first out" priority date order, there are no details as yet regarding these initial transfers.

State Workforce Agencies: The Transitional Guidance also indicates that the SWA's will begin shipping unprocessed cases to the BRC in October 2004 and are to complete sending all cases by March 31, 2005. Again, no further details are yet available.

Beginning January 1, 2005, the SWA's will simply date-stamp new applications and forward them to two other new centers in Atlanta and Chicago. These cases will be handled in full by the new centers, and the SWA will discontinue their involvement in permanent labor certification processing at the end of March 2005, according to the Transitional Guidance.

Effect Uncertain: It is still too early to tell how these changes will affect cases filed with or remanded to the SWA's. The BRC's will have experienced staff from the Philadelphia and Dallas offices, but they will be assisted by a large cohort of recently trained contract personnel, so a "learning curve" is to be expected. Also, the current system is characterized by special local rules and idiosyncrasies at each office. How these variations will be dealt with at the centers will be the subject of important liaison with the DOL. Once the transfer and processing of cases begins in earnest, we should have a better understanding of what to expect.

Proposed PERM Program: Lurking behind the scenes of the Backlog Reduction Program is the Proposed PERM labor certification program, which promises a new streamlined, attestation-based process with much faster approval times. Initially proposed in 2002, the final regulation has not yet been cleared by the Administration and its details have not been published. The recent DOL Transition Guidance states its operating assumption that PERM will be promulgated by the end of 2004, but also provides a contingency plan in case PERM is further delayed.

If and when the PERM regulation is published, the SWA's will stop accepting new labor certification applications after 61 days, according to the Transitional Guidance, and presumably employers will thereafter file new applications in compliance with the new PERM regulations. If so, this is a change from the expected 120-day "waiting period" that has been suggested by the DOL.

PERM Information: Berry Appleman & Leiden will provide information on PERM in a series of informational updates and briefings as more information becomes available. Most employers will need to re-engineer their labor certification programs to comply with the new requirements of PERM, once they are known, and Berry Appleman & Leiden is prepared to provide new models and approaches to help with this challenge.