New And Improved Labor Certification?
The Department of Labor has published a proposed rule that would fundamentally alter the labor certification process. The new procedures would rely largely on employer attestations and automated processing of applications. The change has been anticipated of several years as the "PERM regs," but the acronym does not appear in the proposed regulation.
The new system would require employers to conduct recruitment before filing their applications directly with an Employment and Training Administration (ETA) application processing enter on application forms designed for automated screening and processing. State Workforce Agencies (SWAs), formerly State Employment Security Agencies (SESAs) would provide prevailing wage determinations to employers. Employers would be required to place a job order with the SWA which would be processed the same as any other job order placed by employers. SWAs would no longer be the intake point for submission of applications and would not be involved in processing the applications as they are under the present system. The DOL anticipates that the combination of pre-filing recruitment, automated processing of applications, and elimination of the role of the SWA's in the processing of applications will reduce the average time needed to process labor certification applications.
The pre-filing recruitment would include both mandatory and alternative recruitment steps. The alternative steps would be chosen by the employer from a list of additional recruitment steps in the regulations. The employer would not be required to submit any documentation with its application, but would be expected to have assembled supporting documentation specified in the regulations and would be required to provide it in the event its application is selected for audit.
Employers would be required to submit their applications to an ETA application processing center for automated screening and processing. The automated system would review application based upon various selection criteria that would allow applications to be identified for potential audits before determinations could be made. In addition, some applications would be randomly selected as a quality control measure for an audit without regard to the results of the computer analysis.
A complete labor certification application would consist of two forms - an Application for Permanent Labor Certification form (ETA Form 9089) and a Prevailing Wage Determination Request (PWDR) form (ETA Form 9088). The application form would require the employer to respond to 56 items. The majority of the items on the application form would consist of attestations which would require the employer to do no more than check "yes," "no," or "NA" (not applicable).
The information required on the new application forms is similar to that required by the current labor certification process. The employer will have to attest to whether he provided notice of the application to the bargaining representative or its employees; whether the alien beneficiary gained any of the qualifying experience with the employer; whether the alien is currently employed by the employer; whether a foreign language requirement is required to perform the job duties; and whether the US applicants were rejected solely for lawful job related reasons. The wage offered on the application form would be required to be to equal to or greater than the prevailing wage determination entered by the SWA on the PWDR form
The application form would not require the employer to provide a job description, or detailed job requirements. The job description and job requirements will be entered on the PWDR form, which the employer will submit to the SWA for a prevailing wage determination. The SWA will enter its prevailing wage determination and return the endorsed form to the employer. The employer will then submit both forms to an ETA servicing office for processing and a determination.
The employer will not have to provide any supporting documentation with its application, but must provide supporting documentation if the application is selected for an audit.
The criteria for adjudication will be whether the employer has met the requirements of the regulations; whether there are insufficient workers who are able, willing, qualified and available; and whether the employment of the alien will have an adverse effect on the wages and working conditions of US workers similarly employed.
The new labor certification application and PWDR forms have been designed to be machine readable or completed over the Internet. Initially, forms will be submitted by FAX or by mail, and will be subject to an initial acceptability check to determine whether the application can be processed. If a fee for processing labor certification applications is approved by Congress, all applications will have to be submitted by mail.
After an application, including the PWDR, has been determined to be acceptable for filing, a computer system will review the application based upon various selection criteria that will flag problem applications for audit. Some applications will be randomly selected for an audit without regard to the results of the computer analysis as a quality control measure. If an application is not selected for audit, it will be certified and returned to the employer. The employer may then submit the certified application to the INS in support of aI-140 petition. The DOL anticipates that if an application is not selected for an audit, a computer-generated decision will be sent to the employer within 21 calendar days.
If an application is selected for an audit, the employer will be notified and required to submit documentation specified in the regulations to verify the information on the application. Upon receipt of an employer's audit documentation, the application will be distributed to the appropriate ETA regional office where it will be reviewed by the regional Certifying Officer.
After an audit has been completed, the proposed rule provides that the Certifying Officer can certify the application, deny the application, or order supervised recruitment. If the audit documentation is complete and consistent with the employer's statements and attestations contained in the application, the application will be certified and returned to the employer. If the audit documentation is incomplete, is inconsistent with the employer's statements and/or attestations contained in the application, or if the application is otherwise deficient in some material respect, the application will be denied and a notification of denial with the reasons therefore will be issued to the employer. If an application is denied, the employer will be able to request review of the Certifying Officer's decision by the Board of Alien Labor Certification Appeals (Board or BALCA). On any application selected for an audit, the regional Certifying Officer will have the authority to request additional information before making a final determination or order supervised recruitment for the employer's job opportunity in any case where questions arise regarding the adequacy of the employer's test of the labor market.
The supervised recruitment that may be required by the regional Certifying Officer, is similar to the current non-RIR regulatory recruitment scheme under the current basic process which requires placement of an advertisement in conjunction with a 30-day job order by the employer. At the completion of the supervised recruitment efforts, the employer will be required to document in a recruitment report that such efforts were unsuccessful, including the lawful, job-related reasons for not hiring any US workers who applied for the position. After a review of the employer's documentation, the regional Certifying Officer will either certify or deny the application. In all instances in which an application is denied, the denial notification will set forth the deficiencies upon which the denial is based, and the employer could then seek administrative-judicial review of a denial.
The Department of Labor has shown with its FAX LCA system that it can put technology to work and eliminate unnecessary processing delays. A three-week labor certification may be possible. But the current backlogs at the Department of Labor are not due solely to the DOL's antiquated procedures and chronic lack of manpower. Congress has contributed to the backlogs by its crazy quilt approach to immigration legislation such as the LIFE Act's temporary extension of 245(i) which caused a major speed bump in the route to labor certification.
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