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Alice in Labor Certification Land
by Gary Endelman

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

Biography April 06, 2000 -- Step carefully through the Looking Glass, Alice, and enter the brave new world of labor certification. What is it, you ask? Why child, it is the basis of many green card cases. An employer advertises a specific job opportunity, recruits to find qualified US workers and, if unsuccessful, asks the Department of Labor to certify or approve the application. Once this is done, the employer files an immigrant visa petition with the Immigration and Naturalization Service and thereafter the actual green card application. So, as you can plainly see, Alice, the labor certification is the basis for everything that follows.

I will only agree to go further if you agree, and you must, to suspend logic and reason. Unless you do that, and keep the promise, you will punish yourself with a terrific headache and I do not want the infliction of such punishment on my poor conscience. Do you agree? OK, fine, but do not complain.

A labor certification is valid only for one job in one city. Regardless of how long it takes to get the green card, neither the job description nor the place of employment can ever change, even to the slightest degree. What if it takes years, you ask? No change allowed. What if the employee gains new skills on the job that are valuable to its effective performance? No change allowed. What if new technology is invented during the several years of the green card application that transforms the way the work is accomplished? If not mentioned in the original labor certification application, no change allowed. But, you protest, that was filed years before the invention and it could not have possibly been included! Alice, you are breaking your promise and so soon! OK, maybe a new paragraph will help.

Surely, if the employer wants to transfer the employee to a new project, a project that employs many US workers, for example, that would be allowed? No! No change in the job means precisely that, no more and no less. What if the alien beneficiary stays in the same job but the location migrates to a new city with the same employer- no harm in that, surely? Wrong again since the prevailing wage, the wage that the Department of Labor mandates must be paid, could vary in the new location. What if the alien is actually getting more money in the new city? Oh dear, this is going to be more difficult than I thought and I am running out of paragraphs to soften the blow. No good, Alice, since the Department of Labor must check the availability of qualified US workers in each local job market. Well then, you are willing to accept that but ask that, in turn, the employer should only have to advertise the job locally? Not so fast. Even if the labor certification lacks national validity, as it does, the employer who seeks certification of a professional position, will be expected to advertise nationally. Even that, however, is not what it appears to be Alice. This "national" advertisement must contain specific mention of the "local" place of employment where the alien works. Local or national, neither or both, that is what the Department of Labor wants. It is as clear as mud but it does cover the ground.

Many of the labor certification cases are filed by software companies for computer-related positions. Naturally, actually looking to reach the widest possible audience, they advertise on the Internet. The Department of Labor will not certify without print advertisements even if no qualified candidate would read them and despite the fact that the employer would never do that in the real world. What if the employer has no idea of what it wants the alien to do when hired or even before and is primarily interested in certain skill sets? How can an employer have a fixed job description that must be frozen over several years when everything else changes and at the speed of light? How can an employer be asked to prove that something, namely qualified US workers, does NOT exist? Is it not a contradiction to prove a negative? Alice, my patience wears thin. If you seek to make sense of this, we will never get anywhere!

OK, I accept the idea of a job description, but are there other requirements? Yes, education and experience but carefully controlled. No experience on the job can be used since the alien did not have that experience when first hired. Not even if that experience is critical to the job. Not even if that experience is necessary to its performance. Not even if the alien performed the same job with an international subsidiary or affiliate of the same company abroad. NO! NO! NO! Sanctuary you cry out? Hear this first. Not only does the Department of Labor insist on a "job description" but it compares what the employer presents to the generic job description set forth by the DOL itself in a dictionary of occupational titles. If the job description varies from what DOL thinks it should be, a higher level of scrutiny will be applied. How much experience does it take to do the job? Not up to the employer, surely, but the DOL will set that standard and it cannot be exceeded. If it is, denial will surely follow. What if the employer asks for a higher degree, such as a Master's or Ph.D.? No dice if the alien got the degree after he was hired. If you survive here, as a gesture of heartfelt contrition, you must pay the wage of an "experienced" worker and that experience could be 10, 15, 20 or more years. But, Sir, you protest, rising indignantly out of your chair, you have already said that experience with the same employer cannot be used and this alien may have none other. How can then he or she be deemed to be experienced? SILENCE! I will not brook such infernal impertinence!

Alice, we must adjourn and gather our wits for the morrow. We will need them, I fear.