What Does the Economic Downturn Mean to Your Labor Certification?
Before we even get to the substantive part of this article, we would like to stress to our readers that while the immigration process is always mutating and moving, we have found that heart and perseverance normally prevail. That is a not too subtle reassurance to let all of you know that we have seen periods like this before and people were still able to obtain their permanent residence. That being said, here we go.
As most of you are aware, the United States has been experiencing an economic downturn since the beginning of 2000. Yes, a "downturn" that most of countries in the world would be happy to have -- after all, the net numbers still tell us that we are in a period of positive growth, but a downturn nonetheless. The main culprit of the downturn has been a severe slow-down in the high technology industry and Internet-based businesses in particular. Hardly a day goes by when we don't hear about a particular company laying off a certain percentage of its workforce, or worse yet, closing shop altogether.
More and more or our readers and corporate clients are calling us to ask what this downturn means to the labor certification process. In discussing this topic, the most important thing to remember is the purpose of the labor certification process: to ensure that companies are not hiring foreign talent at the expense of ignoring homegrown talent. That is why the main thrust of the labor certification process revolves around ads, recruitment, and the demonstration that there are not any available U.S. permanent residents or citizens to fill the job in question.
Remember, whether the process is approached as the turtle-like "normal" labor certification process or the much quicker "Reduction in Recruitment" (RIR), the fact remains that advertisements have to be placed and the company must account to the Department of Labor (DOL) how many people applied for the position and whether or not they were qualified for the job.
When the economy was great and all companies were hungry to absorb as many qualified workers as possible, there was not a problem if qualified candidates applied. As a matter of fact, the companies where thrilled that qualified candidates applied because they could then hire those qualified applicants as well. When that is possible, the labor certification process continues unharmed. The other possibility was even easier: due to the severe competition for workers, nobody would even apply for the job posted.
These days things are much different. There are two factors that feed off each other that could work to make a recipe for labor certification processing. On the one hand, companies are laying off thousands of professionals. That makes the available pool of potentially qualified workers much bigger. Second, because companies are actually laying off qualified professionals, they are obviously not in a position where they can absorb the surplus of qualified applicants. If a given company cannot absorb applicants who have the same skills as a foreign professional undergoing the labor certification process, there is no choice but to shelf the process and try it later.
As a matter of fact, the DOL is already on the lookout for companies that are laying off workers. Many of you have heard rumors that an RIR cannot be done or the DOL will not approve labor certifications at this time. That is simply not true! All that the Department of Labor has said is that they are going to keep a close eye on the labor certifications sponsored by companies that announce massive layoffs, to ensure that qualified American workers are not being turned away for the job. That has always been the DOL's purpose.
Most of you would be interested, and we hope reassured, to know that during this last year and a half, we have not noticed a difference in the success rate of labor certification approvals. How can this be, you ask? At least with our own corporate clients (we cannot speak for anybody else, of course), our experience is that they will only hire foreign professionals because they have a genuine difficulty in finding particular skill sets. A visit to any major employment web-site will reveal that at least in the Information Technology industry, there are particular skill sets that are in very high demand.
The first piece of advice for our readers is one that you guys know better than we do: continue to upgrade your professional qualifications whenever you can. Maintaining your skills on the cutting edge of your given professions will lead to upward professional mobility and as a by-product, it will also make your labor certification much more certain, regardless of the economy.
The second piece of advice goes back to the first paragraph. Even under difficult times, we have found that if the company, the foreign professional, and the immigration attorney are patient and work hard, they can ultimately succeed without cheating the system! To put it another way, do not think in terms of WHETHER the labor certification will be approved or not, but rather in terms of WHEN it will be approved.
About The Author
Even before I went to law school I used to say that I wanted to concentrate on some area of law that was international in scope. I certainly got my wish! My job, and privilege, is to help foreign nationals navigate the turbulent waters of U.S. immigration law.
There is no area of law that I would rather be practicing. In large part this is due to the fact that I am an immigrant who had to undergo the same immigration process that our clients must undertake. Based upon our family's immigration experience, I strongly believe that our clients, and the public at large, are entitled to as much feedback and understanding of the process as possible.
I attended the State University of New York at Binghamton where I graduated with a Bachelors degree in liberal arts (Political Science and Economics). I chose the University of Miami School of Law due to the strong reputation of its international law program. However, I must admit that after spending several years in Northern New York, the sunshine was an important factor in my decision. This marks my sixth year practicing family and business immigration law. My goal is to ensure that we provide the best legal immigration services to all our clients. If you have any questions or suggestions, please e-mail me at firstname.lastname@example.org and I will be happy to respond to you.
Mr. Lleras is the Managing Partner of the firm of Latour and Lleras.