border, that means the immigration agencies are having to pull resources, and that has implications for employment-based immigration." When the government is reacting to a humanitarian crisis, including on the U.S. "The Biden administration had a number of other policy issues they wanted to pursue, including reducing backlogs and rescinding Trump administration policies, but they have had to react to crises in Afghanistan and Ukraine. "An incoming administration may have its own priorities, but world events end up dictating what you actually work on," Melmed said. In previewing the Biden administration's business immigration priorities for the year, the trio spoke about the significant number of pending cases and increased processing times inherited from the previous administration, as well as problems that President Joe Biden could not have foreseen. Melmed spoke on a panel with firm colleagues Tiffany Derentz, senior counsel, and Eileen Lohmann, senior associate, at the SHRM Employment Law & Compliance Conference 2022 on March 28 in Washington, D.C. ![]() The Biden administration's efforts to speed up processing are positive but may not be sufficient to meet the challenges of the backlogs and the humanitarian crises in Afghanistan and Ukraine, which are siphoning away resources, said Lynden Melmed, a partner in the Washington, D.C., office of global immigration law firm Berry Appleman & Leiden. ![]() It also announced new internal backlog reduction goals and progress toward improving access to employment authorization documents (EADs), which are crucial to foreign workers and the organizations that employ them. The agency issued a final rule expanding premium processing to additional employment-based immigration applications and petitions. Citizenship and Immigration Services (USCIS) announced March 29 new actions to help reduce caseload backlogs and improve processing times, problems that were recently exacerbated by the COVID-19 pandemic and tightening resource constraints. Jackson & Hertogs is monitoring the status of our pending PERM cases, and following up with DOL when cases are behind the reported processing times.U.S. For example, under the DOL’s standards, a case filed in April 2009 would be overdue for initial Analyst Review (August 2009), but not overdue under the Audit Review (May 2008) processing date. Whether a case is behind the processing times will depend on what processing queue the case is in at DOL. DOL states that if a pending application was filed more than three months prior to the reported processing month, an inquiry may be made on the status of the pending application. DOL’s goal for FY 2010 is to reduce the backlog by 50%. If DOL does not find that the decision was erroneous, the case will move to the Standard Appeal queue for further processing.ĭOL also advised that it has begun an effort to reduce its pending backlog of PERM cases. While an employer may ask for its appeal to be considered under the government error queue, DOL is the sole arbiter in determining whether the decision was government error. “ Government Error Appeals” are appeals based solely on an error by DOL, i.e., cases denied for failure to respond to an audit, but the employer did in fact submit a timely audit response. DOL now forwards appeals directly to the Board of Alien Labor Certification Appeals (BALCA) for review however, until late 2009, DOL was processing both reconsideration requests and appeals in the same queue, so the “Standard Appeals” queue includes both requests for reconsideration and appeals. ![]() For example, DOL is reviewing audit responses for PERM cases that were filed in April 2008 and earlier however, the employer’s audit response may have been submitted several months after that date.Ĭases in “ Standard Appeals” are denied cases where either a request for reconsideration by DOL or a request for appellate review (i.e., an appeal) was submitted. It is important to note that DOL uses the date of original filing (i.e., the priority date) to determine processing times for all PERM cases. While DOL reports that it is processing cases filed in August 2009, we are aware that cases filed as late as February 2010 have recently been processed at DOL.Ĭases in “ Audit Review” were issued audit notices by DOL, and the employer submitted an audit response to DOL for review. The Analyst Review and Audit Review queues moved forward one month the other two categories were unchanged from March.Ĭases in “ Analyst Review” are undergoing initial review – these are the cases for which DOL is currently issuing certifications and audit notices. DOL reports that as of May 31, 2010, it was processing the following PERM cases: Department of Labor recently posted updated PERM processing dates.
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