Labor certification applications that have been languishing in the pipeline for years are now being processed in earnest by the backlog elimination centers in Philadelphia and Dallas. There are thousands of cases filed under the traditional and reduction-in-recruitment modes that have been pending since 2001.
Some cases have become moot as a result of supervening events such as the adjustment of the alien beneficiary’s status on other grounds or death of either the alien beneficiary or the employer, or abandonment by the employer or the beneficiary.
To weed out applications that have been or will be abandoned, the Department of Labor (DOL) has been sending out so-called “45-day letters” to employers or their legal representatives.
The 45-day letter essentially notifies the employer that the case is already up for processing. More importantly, the 45-day letter seeks confirmation that the employer wishes to pursue the application, and in certain cases, requires correction of certain deficiencies in the application. The 45-day letter must be sent back to the DOL with the employer’s complete response within the said period, otherwise, the case will be closed.
Unfortunately, many cases have been erroneously closed purportedly for failure to respond to the 45-day letter. Needless to say, this has raised complaints from employers who have been waiting patiently for years. Even the American Immigration Lawyers Association threatened to sue the DOL if the erroneous closure of cases were not addressed forthwith.
The DOL issued recently an FAQ aimed at providing a remedy for employers whose labor certification cases had been erroneously closed. The FAQ addresses only two types of closed cases, namely, cases where the employer did not receive the 45-day letter itself; and second, cases where the employer timely and completely responded to the 45-day letter. It does not deal with cases that have been closed on other grounds such as where the employer made a late or incomplete response to the 45-day letter or any other DOL communication.
To request the DOL to re-open a case, an email should be sent to the Backlog Elimination Center (“BEC”) under the subject line “Request to Reopen.” The Dallas BEC email address is email@example.com, and the Philadelphia BEC address is firstname.lastname@example.org. There should be one case per email request. Requests to reopen may not be made by regular mail.
The email should contain the following: (a) the name of the employer and the correct current address, (b) the correct case number (which should be the ETA number not that from the State Workforce Agency), and where applicable an explanation why there is no ETA case number; (c) current contact information, including the email address of the employer and the legal representative; and (d) name of the alien beneficiary.
The body of the email must describe the reason why the case was erroneously closed, which can be either of the three, to wit: (1) no 45-day letter was received by the employer / legal representative, (2) a timely and complete response to the 45-day letter was made, or (3) neither a 45-day letter nor notice of closure was issued but the employer’s H-1B mailbox indicates the case is closed.
When the email request is sent, the DOL shoots back an automated response which merely confirms that the email was received. Actual turnaround on the request, according to the DOL, may vary.
If the DOL reopens the case the second email will include a screenshot of the case, the 45-day letter and, if applicable, a list of corrections to be made on the application. Employers must check the screenshot of the case to ensure that the proper case was reopened.
If there are no deficiencies in the application, the employer’s request to reopen will be considered the response to the 45-day letter and the DOL will simply continue to process the case.
If the case has deficiencies and the DOL’s email response included a list of corrections to be made, the employer must submit the correction in hard copy within 45 days. Otherwise, the case may be delayed or worse, re-closed.
According to the DOL, if the employer has not received the 45-day letter by July 21, 2006, it should send an email to either the Dallas BEC at email@example.com or to the Philadelphia BEC at firstname.lastname@example.org. The email must state the attorney’s name and address; the employer’s name and address; alien’s name and address; the priority date of the case; and the state or regional location and/or number where the case was originally filed.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com