LABOR CERTIFICATION CHANGES AND
PROCEDURES
1.
The Labor Certification Audit
On May 22,
1996 the U.S. Department of Labor Office of the Inspector General, conducted an
audit of the Labor Certification process.
$50
million is spent annually on the labor certification process. The purpose of
the labor certification is to:
·
Exclude foreign workers (e.g. In H-1
status) when qualified, willing and able U.S. workers are available
·
To test the U.S. labor market and exclude aliens when a U.S.
worker is available for the position. The U.S. worker is only required to meet
the requirements of the position. Thus, even if the alien is more qualified or
better qualified than the U.S. worker, the U.S. worker should be hired if
he/she meets the minimum requirements of the position.
The results
of the audit were as follows:
·
The
program does not currently protect U.S. workers and the labor certification
process is a sham
·
Employers specifically tailor advertised jobs to help aliens
obtain permanent labor resident status
·
Employer’s contacts with the aliens occur long before the
labor market test
·
Employers create nonexistent jobs to help aliens obtain
permanent resident status
·
The number of U.S. workers hired as a result of the labor
market test was negligible
·
Out of 24,150 aliens for whom labor certifications were
certified under the Labor Dept. program:
-
99% were in the U.S. when the application was filed;
-
74% were working for the U.S. employer at the time of the
application;
-
16% of these were out of status;
-
11% never worked for the petitioner/employer after
adjustment to permanent resident status even though the only reason for
obtaining the green card was that no qualified, willing U.S. workers were
available;
-
17% left the employer within 6 months after adjustment to
permanent resident status
The Permanent Labor Certification Process is perfunctory at best and a sham at worst. Of the 28,682 applicants from 12 states referred on 10,631 job orders during the period, only 5 (0.02 %) were hired. Even when the U.S. applicants were hired, 104 (0.08%) hires out of the test sample of 136,367 applicants, they were incidental to the aliens being hired, i.e., the specific jobs advertised were still filled by the aliens. The program does not currently protect U.S. workers jobs. Instead, it allows aliens to immigrate based on their attachment to a specific job and then show their services in competition with equally or more qualified U.S. workers without regard to prevailing wage.
The Audit Results Demonstrate that:
Regulatory
and Legislative Changes are needed to protect U.S. workers and to see that
their wage levels are not eroded. If Congress fails to enact Immigration Reform
to change the current system, the Employment and Training Administration (ETA)
intends to make as many Administrative and Regulatory Changes and Improvements
as can be implemented under current law to strengthen the programs.
2.
General Administrative Letter (Gal) 1-97,
Dated October 1, 1996.
As a
result of the above audit, the Department of Labor (DOL) announced significant
changes to increase efficiency in the permanent labor certification
process. The DOL has in effect re-engineered the permanent labor
certification process.
PRIOR DOL
PROCEDURE:
Prior to
the announcement through the GAL letter the procedure was as follows:
An
employer would draft a labor certification application (ETA 750A forms) and
mail it along with the job notice and statement of qualifications (Form ETA
750B) to the State Employment Security Agency (SESA). The SESA would
then respond and question special requirements, excessive educational and
experience requirements, combination of duties, tailoring of job duties,
prevailing wage, and a host of other issues relevant to the labor certification
process. The employer would then respond to the SESA providing justification
for the requirements (business necessity, etc.) and specifically
responding to the issues raised by the SESA office. The local office would then
generally instruct the Employer to advertise the position and commence
recruitment efforts. Upon receipt of the recruitment results, the SESA office
would then forward the results to the Regional office of the DOL.
The
Regional Office would then either approve the application or issue a Notice of
Findings (NOF) with intent to deny the application on one or more grounds. The
employer would then be required to rebut the NOF. If the rebuttal was accepted,
the certification would be granted. Under certain cases, the application could
also be remanded to the SESA for further recruitment. If it was rejected, the
Employer had the option of appealing to the Board of Alien Labor Certification
Applications (BALSA).
CURRENT DOL PROCEDURE IMPLEMENTED AFTER
ISSUANCE OF GAL – 1- 97:
Under
current procedure, the SESA is not authorized to allow the Employer to commence
recruitment on any application, which contains requirements or
restrictive requirements which did not exist prior to the alien being hired.
Applications where the Employer refuses to remove such requirements will be
sent immediately to the Regional Office (Certifying Officer) by the SESA
for processing in the order that they were received along with other
applications. Employers who do not wish to delete restrictive requirements will
be requested by the SESA to submit documentation of business necessity, which
will be included in the transmittal letter to the Certifying Officer.
Under this
new procedure the business necessity justification should address the
job opportunity:
i) As described in the
application as it existed prior to the hiring of the alien or, if
this is not the case,
ii) The Employer should
document that a major change in its business operation caused the position to
be created after the alien was hired.
Jobs that
did not exist before the alien was hired will be considered jobs that are not
truly open to U.S. workers, unless the employer can clearly demonstrate
that a major change in the business operation caused the position to be created
after the alien was hired.
HOW CURRENT PROCEDURE CHANGES PRIOR
PROCEDURE:
Under, prior procedure
(before GAL-97) an employer was not required to establish business necessity
under these two limited methods only. The employer could submit documentation
and provide written explanations that the job opportunity has been and is being
described without unduly restrictive job requirements. (The regulations
identify as unduly restrictive any job requirement that is not included for the
job in the Dictionary
of Occupational Titles (DOT) or is not normally required
for the job in the United States.
Under the GAL 1-97 in
order to establish the business necessity standard the employer is required to
establish that the job opportunity:
i) As described
in the application existed prior to the hiring of the alien or, if this is not the case,
ii) The Employer
should document that a major change in its business operation caused the
position to be created after the alien was hired.
Thus, this new policy attempts to disregard what is
normally required for the job in the United States.
The new policy will
challenge virtually all requirements that an employer requires in item 15 of
the alien employment certification application.
Backlogs And Significant Delays In
Labor Certification Processing
Funding for labor
certification and LCA processing has been cut by $13 million. There have been
increasing staff cuts in the Department of Labor. Meanwhile the number of
applications for Labor certification continues to rise. This increases backlogs
and delays.
All aliens should expect
increased backlogs in the processing of labor certification applications.
Recommendation: Aliens should begin
processing of their labor certification applications as soon as they receive
their first H-1B approval. Since there is a likelihood of increasing denials of
labor certification applications and since significant delays are likely, the
only alternative is to begin processing early to provide for such delays and
denials.
The
information in this article is of a general nature and may not apply to any
specific or particular circumstance. It is not to be construed as legal advice
and does not establish an attorney-client relationship between The Law Offices
of Cyrus S Nallaseth and the viewer.