Labor Certification Backlog Victims: Retrogression is Still a Problem
Immigration Voice members who are victims of Labor Certification backlogs have questioned our goal of fighting for additional visa numbers while they are still stuck in the labor certification stage. Even if the entire Labor Certification backlog is cleared by Sep 2007 as promised by the Department of Labor (DOL), all 300,000 backlogged primary applicants and 300,000 dependents – on average, there is one dependent for each primary applicant – will then compete for the annual quota of 140,000 green cards. Therefore, the time for solving the retrogression and labor certification problems is now.
Labor Certification Process
Labor Certification (LC) is the first stage of the typical Employment-Based (EB) Green Card process. The U.S. employer tries to find an American worker for the foreign applicant’s job; the Department of Labor (DOL) supervises. If a qualified and willing American cannot be found, DOL approves the Labor certification. Foreigners earn over 50% of American graduate degrees in Science & Engineering. It is not surprising that American workers cannot be found for many jobs. The 2005 Economic Report of the President admits that 300,000 LC applications are pending in the Philadelphia and Dallas Backlog Elimination Centers (BECs).
Labor Certification Backlogs: Causes
- Labor Certification is the only stage of the Employment-based green card process that has no fee associated with it. As a program with no revenue, only costs, it is set up for failure.
- Congress passed an amnesty under Section 245(i) of the Immigration and Nationality Act. Under this amnesty, people who were out of legal status in the U.S. became eligible for EB Green Cards as long as their employer filed a labor certification application. This amnesty sunset in April 2001, but it is estimated that it is one of the big causes of the Labor Certification backlog.
- Congress increased the cap on H1B visas from 65,000 to 195,000 for the years 2001-2003. H1B workers typically apply for Employment-Based green cards, and this overloaded the Labor Certification System.
Labor Certification Backlogs: Processing Problems
DOL’s own assessment shows constant revision of internal targets. See Q 2.1, p. 212, of Program Assessments, Department of Labor, at http://www.whitehouse.gov/omb/budget/fy2006/pma/labor.pdf.
- The current backlog is 315,000.
- In 2004, DOL was supposed to reduce the original backlog of 270,000 by 36.5% to 171,450.
- In 2005, DOL was supposed to reduce the backlog by 42% from 171,450.
- DOL’s original goal: eliminate backlog by end of FY 2006.
- DOL’s current status: data entry for all backlogged cases will be finished by June 2006. The backlog elimination target date is end of FY 2007.
- Labor Certification backlog processing at the Philadelphia BEC (PBEC) and Dallas BEC (DBEC) is non-transparent. DBEC appears to be processing 2004 cases, far ahead of PBEC, which is still at 2001. There is no chronological order to approvals.
- DOL has estimated that the backlog would be eliminated by Sep 2007, but DOL’s previous estimates have not been correct. DOL estimated that all cases would be entered into a database by Summer 2005, but later revised that estimate to Summer 2006.
Immigration Voice Efforts on the Labor Certification Backlog Issue
The IV team has had very productive meetings with senior decision makers and staffers both in the Congress and the Administration. Feedback from these meetings indicate that decision-makers are aware of the size and scope of the backlog problem. However, a sensible and comprehensive solution is yet to be derived. IV is working with these decision-makers on legislative and administrative solutions to this enormous problem.
Practical Goals for the Labor Certification Backlog Problem
- IV will ask Congress to increase BEC funding to speed up backlog processing; possibly by fees on new labor certification applications, and premium processing fees for applications already in the BECs.
- IV will request the formation of a Congressional committee to oversee Labor Cert Backlog Elimination Center operations and ensure transparency and efficiency in clearance of all backlogs by Sep 2007, the internal target of the Department of Labor.
- IV is also asking for 3 year H1B extensions for EB GC applicants who have completed 6 years on H1. This would provide immense practical relief for people stuck at the BECs.
What Immigration Voice Will Not Do
- Immigration Voice is proposing practical steps to eliminate the backlog by increasing BEC funding, and will not ask for automatic approvals of Labor Certs pending at the BECs. Any such request will be an excuse for anti-immigrants to lump skilled legal immigrants with illegal immigrants.
- IV supports increased efficiency and transparency in DOL operations. IV will not participate in a lawsuit as we are committed to working with DOL to resolve this problem. The judges opinion in Liberty Fund v. Chao shows that lawsuits are unlikely to result in a positive outcome.