US DEPARTMENT OF LABOR
EMPLOYMENT AND TRAINING ADMINISTRATION

PERMANENT LABOR CERTIFICATION PROCESS
MANAGEMENT REVIEW

January 2002

EXECUTIVE SUMMARY 2

1 INTRODUCTION 6

1.1 Permanent Labor Certification program 6
1.2 Project description 6
1.3 Purpose of this report 7

2 CURRENT PERMANENT LABOR CERTIFICATION PROCESS 8

2.1 Methodology 8
2.2 Process Review 9
2.3 Caseload analysis 25
2.4 Key findings 32
2.5 Next steps 34

3 EVALUATION OF POTENTIAL SOLUTIONS 35

3.1 Methodology 35
3.2 Overview of Potential Solutions 36
3.3 Implementation Issues 46

4 ASSESSMENT OF CONTRACTOR OPTION 50

4.1 Feedback 50
4.2 Benefits and Limitations 52
4.3 Options for Contractor Processing 55
4.4 Productivity and Financial Analysis 61
4.5 Implementation Plan 64

Project Overview

Faced with a caseload of over 300,000 permanent labor certification applications, the Employment and Training Administration (ETA) within the U.S. Department of Labor (DOL) has asked PricewaterhouseCoopers (PwC) to conduct a high-level management review and recommend short-term program improvements aimed at reducing the backlog.

During Phase I of the project, PwC interviewed DOL ETA and State Workforce Agency (SWA) staff and created a process map detailing the current process. Phase II of the project focused on generating solutions for backlog reduction and analyzing the feasibility of using a contractor to assist with case processing.

Current Process

Using information gathered during interviews with staff at Regional DOL offices and SWAs, PwC created a process map of the current process and analyzed the backlog of cases. Several key program characteristics define the current process:

• Federal oversight - The current process is a two-step process that starts with review by the SWAs and ends with certification at the Regional level. The SWAs hold responsibility for local labor market knowledge.

• Individuality - Decisions are specific to the particular job opening and availability decisions are made on a case-by-case basis.

• Political factors - 245(i) has been extended twice, causing a large influx of cases in 1998 and 2001. Another 245(i) extension may occur in April 2002.

• Statutory/Regulatory limits - Under current regulations, incomplete cases can be filed and there is no enforcement authority or ability to review for compliance.

The current on-hand caseload is approximately 301,400 cases at the SWA level. A further 24,200 cases are queued at the Regional offices, for a total caseload of 325,600. During FY 2000, 106,969 cases were processed and it is estimated that there will be 127,000 cases filed during FY2001. While a few SWAs and DOLs may be slowly working down their caseloads, the nation-wide backlog was increasing by 18.4% at the SWA level and 3.7% at the DOL level previous to the 245(i) extension. Nation-wide no capacity exists within the current program neither to process the 245(i) cases nor to address any additional cases that may result from future extensions of the 245(i) provision.

There are high costs associated with processing the backlog created by the cases filed as a result of the 245(i) extension. In order to complete the processing of all cases within the backlog, it will cost DOL an estimated $88.3 million and an additional 1,063 staff to complete the processing of all cases within a one-year timeframe.

Key findings from Phase 1 of the project include:

• 245(i) applications are largely incomplete and will require additional processing time.

• The requirements of the program have shaped a process that is focused on individual applications.

• The process varies widely by state and region, making it difficult to introduce process improvements.

• There is no capacity in the current system to handle the processing of the large influx of cases created by the extension of 245(i).

• There is a significant resource requirement created by extension of 245(i) if the backlog is going to be reduced prior to the start of the Program Electronic Review Management (PERM) System. After assessing the current process in Phase I of the project, PwC determined that the program characteristics described above - coupled with the limited timeframe available before PERM is put in place - limit the options available for making major changes to the certification process. Unless the fundamental design of the program is changed, there are no 'Quick Hit' process improvements identified for reducing processing time, and the program is relatively efficient given these constraints.

Evaluation of Potential Solutions

During Phase II of the project, PwC conducted problem solving sessions aimed at collecting feedback on potential solutions for reducing the backlog. Using feedback from the sessions, PwC generated a list of potential solutions for backlog reduction that can be grouped in the following categories:

• Workload transfer solutions

• Systems/process improvements

• Modifications to existing regulations

• Resource adjustments

Analysis on these solutions identified significant limitations associated with a number of these solutions. Workload transfer solutions, which would increase processing by moving cases to states with higher productivity and/or smaller backlogs, are limited because there is currently no extra capacity for processing in the system. Systems/process improvements - consisting of automation, specialty team processing, and the integration of state and regional processing - would require implementation time and are therefore not good solutions for clearing the backlog prior to the introduction of the PERM system. Solutions involving modifications to existing regulations, such as defining a meritorious application and discontinuing the detailed 'Notice of Findings' procedure, will also take too long to implement given the lead time necessary to implement regulatory changes. The most promising solutions for short-term backlog reduction appear to be resource adjustments, which include hiring additional staff at the California SWA and hiring a contractor to assist with processing. The challenges these solutions face are that they require extensive training and may involve hiring large number of employees under a temporary arrangement.

Assessment of Contractor Option

As part of the project, PwC assessed the feasibility of using a contractor to assist with processing cases in the backlog. Based on a high-level review of the process, PwC found that using a contractor is a viable short-term solution for two main reasons:

• The contractor option can be a short-term, temporary solution.

• The contractor option can incorporate process changes that constrain the current system, such as combining the state and regional tasks into one review process.

There are some benefits to using a centralized contractor that cannot be realized under the current processing arrangement. By using a contractor, DOL can introduce a standardized procedure for processing backlog cases. This procedure can involve specialized teams, similar to the California method of processing, which is a method that is highly productive¹.

Using a contractor also introduces the option of consolidating two review steps into one. If the contractor can review cases and prepare them for a 'limited review' on-site by representatives from the DOL Regional office, then this option could be a cost effective way to reduce the backlog. Preliminary analysis suggests that processing productivity could be improved by 20-42% under a combined contractor and process improvement scenario, assuming the contractor can achieve the same level of productivity achieved by California, and depending upon the tasks assigned to the contractor.

There are steps DOL can take to mitigate some of the risks involved with contracting out. One of the limitations to using a contractor is the issue of training. The length of time required for training can be limited by using a specialized team arrangement, so that staff need only to be trained in one step of the process. By using an existing SWA computerized processing system, DOL will realize cost savings and faster implementation. Also, focusing on the top ten SWAs to implement the contractor option will mitigate integration and case tracking issues.

If the contractor option is feasible, the DOL can phase in contractor processing by first conducting a simulation/pilot test. A simulation test can validate contractor processing responsibility and potential productivity. A successful test can then be followed up with a year's worth of actual contractor processing to reduce the caseload before the PERM system is in place.

Current Environment

Recent events have occurred that may impact the future implementation of PERM and that impact productivity in the current system. The final section of the report discusses alternative strategies that the DOL can pursue depending on emerging immigration policies and the current economic environment.

1.1 Permanent Labor Certification program

The Permanent Labor Certification program is an employment-based immigration program administered by the Employment and Training Administration (ETA) within the U.S. Department of Labor (DOL). The program allows U.S. employers to hire foreign workers for employment in the U.S. if there is a shortage of U.S. workers with the requisite skills and if the wage offered to the foreign worker does not have an adverse impact on U.S. workers. Immigrants who obtain permanent labor certification may then apply with the Immigration and Naturalization Service (INS) to become U.S. permanent residents.

1.2 Project description²

ETA is currently leading an effort to restructure the Permanent Labor Certification program through changes in administrative regulations and the introduction of the Program Electronic Review Management System (PERM) System. This system is projected to be in place within the next one and a half years. However, faced with a current caseload of over 300,000 applications, the ETA has asked PricewaterhouseCoopers (PwC) to conduct a high-level management review of the program to evaluate whether any solutions can be implemented to clear the caseload before the PERM system is implemented. Given the eventual implementation of PERM, PwC will focus on solutions that are short-term in nature and that generally will not require changes to the program statutory language or administrative regulations.

While financial considerations are always important factors to consider, the primary focus of this report is to identify and evaluate solutions that will process the caseload by the time PERM is in place rather than identify ways in which cases can be processed at lower cost. For the project, PwC conducted work in two distinct phases:

• Phase I PwC conducted a high level review of the current Permanent Labor Certification process. The review included: a literature review; review of relevant ETA materials; and interviews with Permanent Labor Certification staff at the National, Regional, and State levels.

• Phase II PwC conducted more detailed analysis on opportunity areas identified in Phase I. Problem solving sessions were utilized to explore both short-term and long-term recommendations. A listing of recommendations and descriptions of their feasibility is included in the final report.

1.3 Purpose of this report

This report presents PwC's key findings regarding the current Permanent Labor Certification process and indicates areas of the process that can be further analyzed for solutions and recommendations in Phase II.

This report is divided into 4 main sections:

• 1.0 Introduction: Introduces the Permanent Labor Certification program, provides a project description, and highlights the purpose of the report.

• 2.0 Current Labor Certification Process: Details the methodology employed to examine the Permanent Labor Certification process, describes the Permanent Labor Certification process, identifies key findings and bottlenecks, and provides a list of next steps for Phase II of this engagement.

• 3.0 Evaluation of Potential Solutions: Describes the feedback collected during the problem solving sessions, describes the potential solutions generated during the sessions, and discusses the impacts and feasibility of potential solutions.

• 4.0 Assessment of Contractor Option: Discusses factors involved in the contractor option, scenarios for contractor processing, and presents a productivity and financial analysis of the contractor option. An implementation plan and process flow for the contractor option is also included in this section.

2.1 Methodology

This section describes the approach PwC employed to conduct Phase I of the project and create the Phase I report.

2.1.1 Data gathering and interview process

At the outset of Phase I, PwC requested from DOL ETA staff copies of existing literature and documents that cover the Permanent Labor Certification process. PwC also conducted an Internet search for recent news coverage of Permanent Labor Certification and obtained the current version of the Permanent Labor Certification regulations from the DOL ETA website.

Based on the existing literature review and Internet search, PwC developed a list of questions that explored specific areas of Permanent Labor Certification in greater detail. These questions formed the basis for a series of interviews with DOL ETA and State Workforce Agency (SWA) staff and were also used to request specific documents from these staff.

The following table lists the interviews conducted during Phase 1 of the project:

Figure 1    Interviews

Title	Interviewee	Interview Date
Chief, Division of Foreign Labor Certification	Dale Ziegler	08/02/2001 08/15/2001
Attorney	Harry Sheinfeld	08/06/2001
Team Leader Agricultural Certification	Charlene Giles	08/06/2001
Team Leader Non-agricultural Certification	Patrick Stange	08/23/2001
New York Region - Regional Certifying Officer	Delores DeHaan	08/09/2001
Philadelphia Region - Regional Certifying Officer	Richard Panati	08/14/2001
New York SWA - Supervisor	Joanne Palmiere	08/09/2001
District of Columbia SWA - Supervisor	Dorothy Robinson	08/15/2001
District of Columbia SWA - Immigration Specialist	Beverly Williams	08/15/2001
Maryland SWA - Supervisor	Yolanda Milam	08/16/2001
Maryland SWA - Analyst	Charlene Street	08/16/2001

2.1.2 Analysis

PwC used the information collected in its data gathering efforts to review the Permanent Labor Certification process and conduct a current caseload and backlog analysis.

The process review focused on the following four areas of Permanent Labor Certification:

• Characteristics of Permanent Labor Certification

• Permanent Labor Certification case types and caseload

• Permanent Labor Certification process flow

• Permanent Labor Certification process efficiencies

Based on the findings from the process review, PwC selected two topics to analyze. These topics follow below:

• Projection of staff and budget resources required to clear unprocessed cases

• Impact of improving productivity

2.2 Process review

2.2.1 Characteristics of Permanent Labor Certification

The current permanent labor certification process has the following key characteristics listed in the figure below:

Figure 2 Key Permanent Labor Certification characteristics

Characteristic	Result	Implication
Federal oversight Employment expertise is contained within the various SWAs U.S. immigration is largely a Federal responsibility	Program design has SWAs conduct initial file review and recruitment, with DOL regional offices responsible for a second review and application authorization	Each case3 is reviewed twice SWAs have limited role in application decisions Backlogs can occur at both the SWA and DOL levels
Individuality Decisions must be specific to the particular job opening	Availability and US worker impact decided on a case by case basis Program does not use general market conditions when rejecting applications4	Decisions need to be made accounting for the uniqueness surrounding each case Time saving techniques that treat groups of cases are limited
Political influences Immigration is in the political spotlight Immigration is a very personal issue	Program has been swamped twice with applications from the 245(i) clause of the Immigration and Nationality Act Decisions for each case are supported and documented	Special appropriations have been needed in previous years to tackle the 245(i) application surges Decisions can be appealed and reversed Applicants' rights to due process need to be considered Program needs to involve various advocacy groups
Statutory/regulatory limits No enforcement authority	Incomplete cases can be filed Actual applicant and beneficiary validation does not occur in Permanent Labor Certification	No ability to review for compliance after authorization Cases are not validated until after the process and then only at the INS Time and effort is spent on fraudulent cases that are not "pre-qualified"

These characteristics are key traits of the Permanent Labor Certification program. Changing them would require either changes in the implementing regulations and/or changes in the authorizing statutory language. Since changes to these characteristics could involve the Office of Management and Budget, public review, and even Congressional action, they could involve significant amounts of time and effort. As such, these key characteristics will be considered as the project moves into solution development in Phase II.

2.2.2 Permanent Labor Certification case types and caseload

Using existing documents, PwC identified the different types of cases typically handled by Permanent Labor Certification, the typical number of cases processed by the program and the existing backlog at the regional DOL and State SWA levels.

Case occupations

A review of occupations certified in FY 1999 shows that the program certified 60,239 applications covering 2,114 types of occupations. The top 10 occupations accounted for fully 48% of the total number of applications.

Figure 3    Top 10 application occupations certified, Fiscal Year 1999⁵

The above statistics show that the types of employment positions in Permanent Labor Certification applications are about as diverse as employment in the U.S. economy as a whole. Of the 2,114 types of occupations certified, 2,039 involved occupations that received less than 100 applications over the entire year. At the same time, there is a significant concentration of applications into a select few types of occupations. Those 75 occupations that received more than 100 applications in FY 1999 accounted for 73% of the total applications certified.

This pattern presents a double-edged sword for any efforts for process improvement. Solutions that take advantage of grouping applications by occupation could significantly improve the processing of these applications. However, there will always be a significant portion of applications where these types of solutions will have minimal impact.

Case handling

Cases can be handled in several ways. Each type of case follows a separate track through the Permanent Labor Certification process.

• Supervised recruitment, or regular (Reg) cases involve SWA review of employer attempts to recruit U.S. workers for the position described in the application.
• Reduction in Recruitment (RiR) cases are those cases where the employer does not need to conduct supervised recruitment if the employer demonstrates a pattern of recruitment in the 6 months previous to the application, and the Certifying Officer has either seen availability of workers for that occupation or has seen those occupations typically certified.
• Limited review (LR) cases are those cases identified by SWAs that can be expedited through the regional DOL office review. They may consist of either supervised or RiR cases, but are identified as LR because they are considered as relatively "clean" cases that can be quickly processed.
• 245(i) cases are cases that can follow any of the three tracks described above. However, these largely represent one-time caseloads due to congressional intervention, and they are different than other cases in that they typically involve lower skilled positions. For these reasons they are treated as a separate category.

The following table presents approximate volume and corresponding implications for each case type:

Figure 4    Handling of different case types

Case Type	Approximate Volume6	Implications
Supervised Recruitment	20% - 50% of total caseload	Requires significant time investment Traditional way of proving no U.S. worker availability
RiR	50% - 85% of total caseload7	Significant time savings at the SWA level where recruitment occurs, none at the regional DOL level Widely adopted but further adoption may be difficult
LR	Limited use; varies by state	Not widely adopted by the states Regional Certifying Officers have the flexibility to expedite processing of those cases identified as Limited Review
245(i)	235,700 cases	Special one time nature may make cases markedly different One time nature has resulted in poorly completed cases that require more time

Case processing statistics⁸

The following section examines processing at both the state and regional level. In addition, state and regional processing differences are discussed.

An extrapolation of figures from the first half of FY 2001 suggests that SWAs will receive a total of more than 127,000 permanent labor certification applications in FY 2001. In addition, SWAs received 247,406 cases from the 245(i) provision of the Immigration and Nationality Act, authorized by Congress and effective between December 2000 and April 2001⁹. Since cases related to 245(i) are largely sporadic occurrences that are directed by Congress, these are excluded in the SWA typical processing statistics below.

The following table contains a breakdown of the SWA caseload by regional office:

Figure 5 Estimated SWA incoming and outgoing cases FY 2001¹⁰

Region	Incoming			Outgoing
	Total cases	New	Remanded	Total cases	Cancelled	Sent to DOLs	Change in outstanding cases
Boston	9,770	98.2%	1.8%	10,160	8.1%	95.9%	-4.0%
New York	25,310	98.2%	1.8%	22,316	32.3%	55.8%	11.8%
Philadelphia	20,572	98.6%	1.4%	13,048	5.4%	58.0%	36.6%
Atlanta	9,498	97.4%	2.6%	10,586	10.7%	100.7%	-11.5%
Chicago	12,830	98.6%	1.4%	9,422	9.8%	63.6%	26.6%
Dallas	10,442	99.2%	0.8%	9,310	23.9%	65.3%	10.8%
Kansas City	1,780	98.9%	1.1%	1,296	6.5%	66.3%	27.2%
Denver	1,694	99.6%	0.4%	1,226	6.6%	65.8%	27.6%
San Francisco	34,882	97.3%	2.7%	25,560	8.5%	64.7%	26.7%
Seattle	3,030	99.3%	0.7%	3,050	17.4%	83.3%	-0.7%
SWA Totals	129,808	98.1%	1.9%	105,974	14.3%	67.3%	18.4%

Of the incoming non-245(i) applications, 18% will be cancelled, 66% sent to DOLs, and 2% sent to DOLs but later returned due to deficiencies. At current staffing levels, processing procedures and productivity, 17% will be added to the current outstanding caseload.

It is important to note that an examination of national figures hides significant regional differences. For example, those states under the jurisdiction of San Francisco, New York, and Philadelphia regional DOLs will receive 62% of all applications. Furthermore, 33% of applications are cancelled in SWAs covered by New York, and SWAs covered by Philadelphia are completing the fewest of their incoming caseload, at 64%. Understanding the drivers behind these variances may lead to possible solutions for improving processing efficiencies.

A similar extrapolation of figures at the regional DOL level suggests that DOLs will receive 99,323 cases from states in FY 2001¹¹. Based on the New York DOL, Notice of Findings (NOF) letters signifying intent to deny applications or remands back to the SWAs or applicants due to incomplete cases will be completed for 20% of cases. 13% will be eventually certified after rebuttal, resubmission, or reconsideration. 3% of cases will not be processed at all and will be added to the caseload. There are some differences by DOL office, but they are small: for example, certification ranges from a low of 90% of incoming cases for New York to a high of 98.8% for Seattle¹².

The following table summarizes the regional caseload:

Figure 6    Estimated incoming and outgoing cases - Regional DOL level¹³

Region	New applications	Applications processed	Processed %	Change in outstanding applications
Boston	8,520	6,665	78.2%	21.8%
New York	12,609	13,265	105.2%	-5.2%
Philadelphia	22,213	22,508	101.3%	-1.3%
Atlanta	12,286	10,957	89.2%	10.8%
Chicago	8,799	9,897	112.5%	-12.5%
Dallas	8,088	2,815	34.8%	65.2%
Kansas City	1,348	2,199	163.1%	-63.1%
Denver	1,250	1,292	103.4%	-3.4%
San Francisco	21,908	23,902	109.1%	-9.1%
Seattle	2,302	2,101	91.3%	8.7%
DOL Totals	99,323	95,601	96.3%	3.7%

As Figure 6 shows, regional DOL offices are receiving more applications than they are processing.

The state and regional office processing statistics support three important implications. First, case statistics vary widely at the SWA level - suggesting that any solutions at the SWA level may have to be tailored to address unique SWA conditions. Second, a full 90% of cases eventually get certified - which suggests that there is an opportunity for improving processing of the population of cases that are certified without having a significant detrimental effect to the safeguards protecting U.S. workers. Third, even without 245(i) cases included, caseloads are increasing at both the SWA and DOL levels. This implies that any improvements that increase processing efficiency at the SWA level will create more backlog cases at the DOL offices.

Outstanding caseload

The current caseload stands at approximately 325,600 cases, with 93% at the SWA level (78% of which is 245(i) related) and 7% at the DOL level. Of the total caseload, the two largest regions - New York and San Francisco SWAs and DOLs - comprise 49%, while the three smallest - Denver, Seattle, and Kansas City - comprise just 3%.

For 245(i) cases, of the three SWAs interviewed: Maryland is currently processing cases received in March 2001; District of Columbia has completed filing but is still working on data entry; New York expects to complete filing, sorting, and data entry by the end of October.

Caseloads are estimated to grow this year¹⁴ by 28,464 (or 55%) at the SWA level and 1,706 (or 8%) at the DOL level, or 42% overall. However, this nationwide statistic masks about 15 SWAs and six DOL offices that are currently making progress at reducing their backlogs, although in most cases it will take several years at current reduction rates for these SWAs and DOLs to eliminate their backlogs completely.

The following state and regional offices are currently reducing their backlogs:

• SWAs currently reducing their caseloads: Connecticut, New Jersey, Puerto Rico, West Virginia, Alabama, Florida, Georgia, Minnesota, Louisiana, Montana, North Dakota, Wyoming, Guam, Idaho, Oregon.

• DOLs currently reducing their caseloads: New York, Philadelphia, Chicago, Kansas City, Denver, San Francisco.

A review of the current processing dates at the DOL level reveals similar regional disparities. No DOLs are current in their processing of either Regular (non-RiR) or RiR cases, although several are close to current. At the same time, San Francisco is 33 months behind in Regular cases and Boston is nine months behind in RiR cases. Five DOL offices meet the backlog definition¹⁵ for Regular cases and one DOL office for RiR cases.

At the SWA level, processing dates also vary significantly. Only four SWAs are processing Regular cases less than one month old - Maine, Oklahoma, South Dakota, and Wyoming. 31 SWAs are backlogged in their Permanent cases. For RiR cases, six SWAs are processing cases less than one month old, while 20 SWAs are backlogged.

When taken together, most SWAs and Regions are processing Regular cases that are between six months to one and one-half years old, and RiR cases between four months and a year old. Again, there are significant variations: Cases filed in W. Virginia, are only two months old before they are processed at both the SWA and the Regional levels; RiR cases filed in Puerto Rico and the Virgin Islands are only a month old. At the other end, Regular cases filed in New York are five years and four months old before they are fully processed, and RiR cases filed in Rhode Island are 15 months old. The following table illustrates the outstanding caseload at SWA and Regional offices by region:

Figure 7    Outstanding caseload

Region	SWA			DOL			Total Caseload
	Non 245(i)16	245(i)17	Process Delay18	On hand19	Backlog20	Process Delay21
Boston	5,576	18,285	Reg: 1-32 mo RiR: 1-6 mo	3,287	2,322	Reg: 9 mo RiR: 9 mo	27,148
New York	19,799	59,523	Reg: 7-45 mo RiR: 6-9 mo	2,949	1,071	Reg: 19 mo RiR: 1 mo	82,271
Philadelphia	9,152	26,230	Reg: 1-11 mo RiR: 1-11 mo	924	116	Reg: 1 mo RiR: 1 mo	36,306
Atlanta	5,215	27,209	Reg: 2-29 mo RiR: 3-7 mo	1,969	1,751	Reg: 1 mo RiR: 2 mo	34,393
Chicago	7,633	16,503	Reg: 1-21 mo RiR: 2-10 mo	2,870	2,316	Reg: 5 mo RiR: 4 mo	27,006
Dallas	7,571	17,198	Reg: 1-21 mo RiR: 1-8 mo	5,328	2,947	Reg: 10 mo RiR: 2 mo	30,097
Kansas City	1,358	1,831	Reg: 2-7 mo RiR: 2-6 mo	213	162	Reg: 3 mo RiR: 2 mo	3,402
Denver	607	3,503	Reg: 1-9 mo RiR: 1-4 mo	161	13	Reg: N/A RiR: 2 mo	4,271
San Francisco	8,005	62,950	Reg: 6-13 mo RiR: 0-9 mo	6,042	3,325	Reg: 33 mo RiR: 2 mo	76,997
Seattle	822	2,430	Reg: 5-8 mo RiR: 4-5 mo	422	16	Reg: 6 mo RiR: 2 mo	3,674
Totals	65,738	235,662	N/A	24,165	14,039	N/A	325,565

The significance of the above caseload statistics is threefold:

• First, the overall wait time that most applicants have to endure before processing begins at each respective level of review is significant. For applicants in New York filing non-RiR applications, this wait could be 45 months at the SWA level, followed by an additional 19 months at the DOL level - five years and four months of waiting, not including processing time. In addition, the wait is inconsistent - effectively making it harder for some applicants to meet their labor needs depending on where the application is filed.

• Second, several DOLs are current in their processing of applications, yet at the same time have significant backlogs of cases more than 6 months old. The backlog ranges from 4% of on hand cases in Seattle to 89% in Atlanta, with 58% of on hand cases backlogged nationwide. This suggests that several DOLs are addressing applications that can be easily reviewed first. While this may be a prudent tactic to expedite case processing, it also means that improvement efforts to reduce the caseload face an extra challenge because many of the outstanding cases will be the most difficult to complete.

• Finally - and perhaps most importantly - nationally the outstanding caseload will grow at both the SWA and DOL levels, even without including 245(i) cases. While a few SWAs and DOLs may be slowly working down their caseloads, nationwide no capacity exists within the current program to process the previous 245(i) cases nor to address any additional 245(i) cases that may result from potential future renewals of the 245(i) provision.

2.2.3 Permanent Labor Certification process flow

PwC used existing program regulations posted on the ETA website and information obtained in interviews to construct a high-level process map that identifies the steps involved to completely process different types of Permanent Labor Certification cases.

PwC also examined the effort involved at each step of the process. The second process flow chart represents the generalized Permanent Labor Certification process. Since Regional Certifying Officers and SWA staff have latitude to implement procedures unique to their circumstances, this flowchart should not be interpreted as the exact process that occurs in a specific office. The information used to construct this flowchart came from the implementing regulations and from interviews with the Philadelphia and New York Regions and the New York, Maryland, and the District of Columbia SWAs.

The high level process involves five stages: filing and review of cases for completeness; prevailing wage determination; recruitment; review; and approval/appeals. These phases can be discerned by the groups of process steps illustrated in Figure 8. Figure 8 also shows three different sub-procedures for different types of cases: Regular, RiR, or LR/easily approvable. 245(i) cases can be either one of these three case types. Finally, Figure 8 illustrates the role of the different players involved: employer (often represented by an agent), SWA, DOL, and BALCA (Board of Alien Labor Certification Appeals).

Figure 9 takes the high level process in Figure 8 and summarizes the five-stage process into three primary phases: filing/data entry, processing, and approval. It also provides a summary of the cycle times and probabilities for cases following different processing paths. An arrow represents each step and percentage figures preceding each arrow indicate probabilities of a case following that arrow. Figures within the arrows represent actual time spent processing, while figures beside the arrow indicate the elapsed time cases typically spend at each step of the process, regardless of whether any action is taking place. In addition, Figure 9 illustrates the following bottlenecks in the process: incomplete applications, remands, recruitment, NOFs, and denials.

From Figures 8 and 9, PwC identified the drivers behind how cases progress through the Permanent Labor Certification process and the associated processing times. The separate drivers and processing issues are listed in Figures 10 and 11, respectively below.

Figure 10    Drivers of process cycle times

Driver	Impact
Regulatory provisions	Applicants receive 45 days to provide additional documentation for incomplete applications Applicants receive 75 days to recruit for U.S. workers Applicants receive 35 days to provide a rebuttal to a NOF DOL receives 21 days to consider a NOF rebuttal filed by an applicant
Case type	Regular cases require an additional hour of actual processing time, 4 weeks to 4 months of elapsed time due to recruiting RiR cases require between 30 and 60 minutes of actual time and between 1 and 2 months of elapsed time LR/Easily approvable cases require 15 - 30 minutes of actual time and between 1 day and 1 month of elapsed time
Case completeness - SWA level	Complete applications require 10 minutes for data entry and 2 weeks elapsed time Incomplete applications require an additional 30 minutes
Case decision - DOL level	RiR cases take 5 - 10 minutes if they are limited review; 15 - 30 minutes otherwise Traditional cases take 15 - 30 minutes if they are easily approvable; 30 -60 minutes otherwise Approved cases take no additional time NOFs take an additional 15 - 45 minutes actual time and 35 days elapsed time Some cases need to be remanded to the SWAs to go through the process again; this takes 30 - 60 minutes
Case appeal	Rebuttal takes 30 - 60 minutes for consideration, and an additional 15 - 30 minutes if the case is approved, 1 - 2 hours if it is denied If case goes to BALCA on 2nd appeal, could queue at BALCA for 1.5 years

Figure 11    Additional processing issues

Issue	Description
Clerical tasks and case filing	Cases involve applications that are paper intensive - signatures and evidence have to be provided on hard copy. As such, there is a significant investment of staff resources in order to prepare case files and to enter data into the computer system.
Recruitment - Job orders	Applicants submitting regular cases need to conduct SWA supervised recruitment efforts. This involves significant SWA effort to post the job order, forward qualified resumes and review recruitment reports.
Recruitment - Impact of economic conditions	Although a largely external force on the program, economic conditions can impact the program. The recent economic growth slowdown is one example - SWAs now have to review cases more carefully as more positions generate interest from U.S. and create more resume referrals.
Impact of 245(i)	This is another external force, driven by Congressional decisions to allow additional people to qualify for a certain Immigration status based on an application on file with a certain immigration program - Permanent Labor Certification included. However, deadlines established under 245(i) extensions result in "hurried" applications that are usually very difficult to process due to incomplete or incorrect information.

Using information gathered through the interview process and the process flow maps presented on the previous pages, PwC developed preliminary estimates of cycle time. The cycle time estimates are contained in the following table:

Figure 12    Estimated cycle time for best and worst case scenario²²

Scenario	Probability%	Actual time DD:HH:MM	Elapsed time WW
Best case - clean, RiR, easily approvable case	3.37%	00:00:50	7
Average case - incomplete, RiR easily approvable case	10.11%	00:01:20	14
Worst case - incomplete, supervised recruitment, not easily approvable, remanded, appealed	<0.01%	01:09:13	76

The most likely case scenarios will involve the lowest cycle times (besides the issue of the majority of cases not being complete). this is because approximately 75% of the cases are now rir cases, 50%-80% of which are easily approvable, and close to 90% of all cases are approved and therefore avoid the nof, rebuttal and reconsideration process.

The difference in cycle times between the best cases and worst cases is significant: worst cases take 40 times longer and will take almost 11 times longer in elapsed time to clear the entire process end to end. however, the worst case scenario has less than a 0.01%²³ probability of occurring.

In addition, the one obvious area for improvement - ensuring complete applications - cannot be mandated under the current statute and regulations. Combined, these two findings imply that there appear to be limited opportunities for improvements that aim to shift cases from high time/effort steps to low time/effort steps.

2.2.4 Permanent Labor Certification efficiency

For steps that involved a significant amount of staff time and effort, PwC identified existing techniques used at both the regional DOL and State SWA levels to improve the efficiency of the process. These techniques include:

• Batching cases by employer. Both the District of Columbia SWA and the Maryland SWA used to batch cases by employer. This would allow critical employer based information to be reviewed just once for groups of applications.

• Work sharing. DOL encourages SWAs to send case information to the DOL electronically to prevent the need to manually data enter twice. SWAs vary in their compliance with this request, but this and other work sharing initiatives should be further encouraged to minimize the need for duplicative work.

• Encouraging more RiR cases. RiR cases save the SWAs significant amount of effort since there is a reduced need for supervised recruitment. To the degree that employers can be encouraged to recruit before applying, the burden can be shifted off of the SWAs.

• Using targeted lists to identify easily approvable cases. Philadelphia DOL uses targeted lists to add cases where U.S. workers are in known short supply to those that are easily approvable, since the application is likely to be approved eventually given the lack of availability. This allows staff to expedite these cases and focus on others that are more complicated, but is less likely to be effective during periods of economic slowdown.

• Best practice sharing. Philadelphia DOL provides tips to employers who are regular users of the program to encourage complete and accurate applications. Further best practice sharing between DOLs, SWAs, and major applicants should be encouraged to minimize the need for remands and NOFs and the additional review workloads they create.

• Promoting a productive work environment. Philadelphia DOL assigns one analyst the job of taking all calls on a given day. This allows other analysts to focus on completing cases without being constantly disturbed. In Maryland SWA, a new computer system is being installed. Ensuring that computer systems are responsive and symbiotic with the Permanent Labor Certification processes can also speed up the processing of cases.

• Priority processing cases. New York SWA suggested priority processing the cleanest cases and then informing applicants of the procedure. This "best in, first out" idea would encourage the filing of complete applications, thereby reducing the need for 45 day letters while not requiring a change in the regulations. In a similar vein, Maryland SWA suggested issuing 45 day letters for incomplete applications and then putting those cases to the back of the backlog to allow complete applications to be processed first.