The Department of Labor (DOL) has announced that the Office of Foreign Labor Certification (OFLC)'s new record retention system was approved by the National Archives and Records Administration (NARA).
Employer applications for labor certification and supporting documentation retained by OFLC, both in paper and electronic form, were found by NARA to be temporary records and subject to destruction in accordance with an approved schedule. As of September 26, 2013, OFLC no longer has access to employer application records filed in 2002 or earlier. These documents were previously retained in a database which was destroyed. Due to the destroyed records, the OFLC will no longer be able to confirm priority dates, search for records in response to Freedom of Information Act (FOIA) requests, or provide information for requests for duplicate certifications.
The impact of the OFLC’s inability to provide old records and information will be felt mainly by 245(i) applicants. 245(i) allows certain eligible foreign nationals to adjust status in the U.S. notwithstanding any unlawful presence. One of the requirements for demonstrating 245(i) eligibility is proving that an immigrant visa petition or labor certification was filed on the applicant’s behalf prior to April 30, 2001. Applicants will now be unable to request confirmation of the filing of labor certification applications through DOL FOIA requests. For applicants who do not have the original records themselves, which most do not, proving eligibility for 245(i) will now be very difficult, if not impossible.