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DOL Proposes New Labor Certification System
by Cyrus D. Mehta

The long awaited regulations to streamline the foreign labor certification process was published in the Federal Register on May 6, 2002. It is still a proposed rule, and will only take effect after the public sends comments. Written comments must be submitted on or before July 5, 2002.

The process for obtaining a permanent labor certification has been criticized as being complicated, time consuming and requiring the expenditure of considerable resources by employers and government. The proposed rule attempts to make fundamental changes to streamline the labor certification process.

As a background, labor certification is normally the first step for an employer to sponsor a foreign employee for lawful permanent residence. The employer must establish that there are no US workers qualified or available within the area of employment for the position that has been offered to the foreign employee. Traditionally, an employer filed an application and waited for instruction from the labor department to conduct the recruitment. Due to the backlog, it could take over four years in New York for a labor certification application to be approved under the traditional method.

If an employer can establish that it has conducted a good faith recruitment within six months preceding filing, the Department of Labor (DOL) can move the process expeditiously under a procedure known as Reduction in Recruitment (RIR). However, the merits of the employer’s recruitment effort is still evaluated by two offices. Due to the large number of applications filed before the Section 245(i) deadline on April 30, 2001, the RIR backlog is now about a year in New York. It has also increased in other offices across the country.

The proposed rule would abolish the existing labor certification process, which is a two-tier system involving the State Employment Security Agencies (SESAs), now renamed State Workforce Agencies (SWAs), and the DOL. Every application filed presently has to first be reviewed by a SWA and subsequently re-reviewed by the DOL regional office.

The redesigned process will require employers to submit their applications directly to an Employment and Training Administration (ETA) application processing center for automated screening and processing. The State Workforce Agencies (SWAs), provide prevailing wage determinations to employers, a mandatory requirement before filing the labor certification under the new system.

Under the automated procedure, it would be no longer necessary to submit evidence of the employer’s recruitment efforts with the application. Instead, the employer will have to attest that it has complied with all the recruitment efforts newly mandated under the regulations.

Under the streamlined procedure, it could possibly take only about three weeks to have the labor certification approved. But before approval, a computer system will review it based upon various selection criteria or “flags” that will allow more problematic applications to be identified for an in-depth review or audit. The DOL also anticipates that some applications, as a quality control measure, will be randomly selected for an audit without regard to the results of the computer analysis. If no request for an audit has been triggered by the information provided on the application or by random selection, the application will be immediately certified and returned to the employer, who may then submit the certified application to the INS for further processing.

If the application has been flagged for an audit, the employer will be notified and required to submit in a timely manner documentation verifying the information attested to on the application. After an audit has been completed, three potential actions could be taken: certification, denial, or 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 not complete, is inconsistent with the employer’s statement and/or attestations contained in the application, or is otherwise deficient in some material respect, the application will be denied with reasons. The employer will have an opportunity to appeal the denial. Where there are questions regarding the adequacy of the employer’s test of the labor market, the Certifying Officer of the DOL regional office can order supervised recruitment.

Although the announcement of such a procedure appears to be good news, the proposed rule makes fundamental changes to the labor certification program that might make it more difficult to file applications. One major change is the proposal to abolish the doctrine of “business necessity.” At present, if the DOL finds that the employer’s job requirements are excessive to those normally used, the employer can justify such excessive requirements through business necessity.

Under the proposed rule, the employer would no longer be able to justify excessive experience or training requirements through business necessity. In fact, the requirements cannot exceed the DOL mandated Specified Vocational Preparation level assigned to the occupation as shown in the O* Net Job Zones.

The proposed rule, on the other hand, would still allow an employer to justify other unusual requirements not relating to experience required for the occupation. Such a case could be made if there was previous employment of US workers in the same requirement and that the other requirements are also normal to the occupation. Acceptable examples, depending on the occupation, include but are not limited to, professional trade or business licenses, licensing standards, specified typing speed, and the ability to lift a minimum number of pounds.

The proposed rule would also allow use of a foreign language requirement based on the nature of the occupation, and not because of the convenience or preference of the employer. The proposed rule provides examples where a foreign language requirement may be justified such as translator, or, because the employer requires to communicate with a large majority of customers or contractors who cannot communicate effectively in English.

The proposed rule will also abolish the employer’s ability to include as a requirement for the job opportunity any experience that the foreign national gained working for the employer in any capacity, including working as a contract employee. At present, experience with the same employer can be used as a requirement if the foreign national gained the experience in dissimilar jobs within the company or if the employer maintains that it is no longer feasible to train another worker for the job involved in the application.

Another worrying aspect of the proposed rule is that it would eliminate alternative requirements as a means of qualifying for the job opportunity. Thus, if an employer requires two years of work experience in the occupation, the foreign national must be able to demonstrate it through two years prior experience in another employment and in the same job. If the foreign employee possessed related, but not the exact experience, the employer can no longer require that related experience as a requirement for the job opportunity.

Take for example an employer sponsoring a foreign national for the position of “software engineer.” Prior to joining this employer, the foreign national had substantial experience as a “systems analyst.” Under present law, and in real world recruiting too, an employer could ask for prior experience as either a software engineer or a systems analyst. An individual who has worked as a “systems analyst” would still be suitable for the position of “software engineer.” The proposed rule will prohibit an employer from requiring the alternate experience of “systems analyst” for the position.

These are some of the highlights of the proposed rule. The American Immigration Lawyers Association and various other groups are planning to submit strong comments opposing these changes. It is not anticipated that DOL will propose a final rule very soon. Only the highlights of the proposed rule are mentioned in the article, readers should read the actual proposed rule in the Federal Register for further details.

Proposed Rules

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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