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The Labor Certification Process

by George N. Lester, Esq.

George N. Lester IV

This article is a chapter excerpted from the "Massachusetts Immigration Practice Manual” published by Mass. Continuing Legal Ed.,  http://www.mcle.org/.

 

Editor’s Note: This article is based on current labor certification regulations - upcoming PERM regulations will change the labor certification process and the specific rules mentioned in this article may no longer apply.

§ 1           Introduction

The first step in most employment-based permanent residence cases is the Application for Alien Employment Certification (also known as “Labor Certification”).  In this procedure, the employer submits an application detailing an offer of employment in a permanent position to the alien beneficiary, and seeks a determination from the U.S. Department of Labor that (1) based on a reasonable test of the labor market, there are not sufficient U.S. workers who are able, willing, qualified and available for the job, and (2) the employment of the alien will not adversely affect the wages and working conditions of U.S. workers similarly employed.[1]   As part of the process, the employer is required to advertise the job, respond to applications from U.S. workers, and attest that all were rejected for lawful job-related reasons.  Obtaining the grant of Labor Certification is a prerequisite to filing the Immigrant Petition for Alien Worker (form I-140).[2]  “U.S. workers” are U.S. citizens or nationals, permanent residents, refugees and asylees.[3] 

Labor Certification can be lengthy, complex and frustrating.  Several factors make it different in character and more unpredictable compared to other immigration procedures.  One is the involvement of government agencies other than U.S. Citizenship and Immigration Services, who have different agendas, priorities and funding resources.  The application first goes to a “state workforce agency” (the “SWA”) in the state with jurisdiction, and then to one of 9 regional offices of the U.S. Department of Labor Employment and Training Administration (“DOL”).  Their primary mission is to protect U.S. workers, not to serve U.S. employers seeking to hire aliens or the foreign nationals themselves.[4] 

Another frustrating element is that more than in other procedures, success depends on factors largely beyond the control of the applicant, namely the local labor market availability of U.S. workers in a given occupation. 

Preparing the Labor Certification Application requires awareness of a complicated matrix of legal and procedural requirements and strategic issues.  Careful attention to detail in the job description and requirements, advertising, recruitment and review of the beneficiary’s qualifications is crucial to make sure that all elements of the application are properly reconciled with the requirements and with the employer’s goals.  Making it more difficult is that the rules governing the process change over time as DOL issues new policies and attempts to react to exigencies of the labor market.  With processing times routinely 1 to 2 years or more, thoughtful strategic decisions and careful advance planning are essential. 

This chapter will outline a step-by-step approach to working with the employer and beneficiary, preparing and filing the application, and seeing it through the test of the labor market and other steps towards completion.  The emphasis will be on processing cases in Massachusetts but the discussion will also be generally applicable for other states.

§ 2       Step 1 - Gather Relevant Information, Establish Client Expectations

It is essential to go through a thorough process in advance of gathering information and documents from the employer and beneficiary.  Such information includes detailed background on the employer and its business operation and finances, a detailed job description and statement of requirements for the offered position, information about any recruitment the employer may have conducted for the job and related hiring statistics, academic and experience credentials of the beneficiary, including reference letters from prior employers detailing experience and skills relevant to the subject job in the application, and biographical and U.S. immigration history background for the foreign national.  A questionnaire listing the documents and information that are needed will be a useful tool.[5] 

Establishing good communication and setting appropriate expectations of the employer and beneficiary are also very important.  Following are points of further inquiry and explanation about the labor certification process that should be raised in the initial client meeting or communication:

§ 3       Step 2 - Make Initial Strategic Decisions, Know Deadlines

The following are strategic decisions to make early on regarding how to proceed in the application and important factors which should be reviewed to establish any deadlines.

§ 3.1       Whether to File as “Regular” or “Reduction in Recruitment” (RIR) type of application. 

As part of the Labor Certification process the employer must document that it has held the permanent job open to U.S. workers and that despite the test of the labor market no willing, able and qualified U.S. worker was available. There are two ways this is accomplished.  In what is known as the “regular” process, the application is first filed with the SWA, and then after its initial review of the job offer, recruitment efforts are conducted under the SWA’s supervision.  This will include the SWA placing a job order in its own Employment Service recruitment system, and instructing the employer to place a “blind” form of advertisement in a newspaper or journal.[7]  Alternatively, in what is known as “Reduction in Recruitment” (RIR), the application is submitted with documentation that the employer has already “adequately tested the labor market with no success” on its own, by actual good-faith efforts to recruit U.S. workers for the job opportunity “through sources normal to the occupation,” in the six months immediately preceding the application.[8]  

A choice between these two approaches is one of the first decisions to make in the case. If the employer has carried out actual recruitment efforts for the job opportunity for which it plans to file the application, then a request for RIR may be a viable approach, which, if granted, will waive the supervised recruitment.  This strategy creates a strict six-month window for filing the application.  If initial documentation provided by the client indicates that recruitment activities have occurred, the beginning date should be ascertained, such as, in particular, a first publication date for any newspaper or journal advertisement.  That will establish a deadline six months hence by which the application must be filed.  

If the employer has not carried out recruitment activities for the job but plans to, or has carried out some recruitment but not all of the types which will support a complete RIR request, then it can be advised on how to structure a recruitment process sufficient to meet DOL standards for RIR.[9] If the employer plans to file labor certification applications for multiple beneficiaries, then advertising and recruitment efforts can be prepared in a way to support all of the applications in a cost-efficient manner.  The strategy of prospective recruitment efforts planned to support a RIR request will, of course, postpone the actual filing of the application for up to six months while the efforts are carried out and the results documented. 

Other strategic considerations that go into the choice between “regular” and “RIR” filings are:

  • Determine the relative timing of the two processes in the jurisdiction of filing. In many locations, RIR remains much shorter because of extreme backlogs in regular process, giving an incentive to use RIR if at all reasonably possible.  In other locations, the processing time difference is not great, particularly when lead time for planned recruitment efforts is factored in. 
  • The RIR process is most indicated where the job is somewhat generic, the employer is relatively large, the employer has, in fact, been recruiting in the category and cannot fill its openings, the employer has not had recent layoffs, and the occupation has been recognized by DOL (using its various labor statistics) as having a shortage of workers.
  • The regular process is most indicated where the employer is small, the job has unusual duties or requirements, the occupation is not in a shortage category, or the employer is averse to the idea of placing regular advertisements in its own name as a “test” of labor market when it is not, in fact, actively seeking to fill the position. 
  • Inquire if the employer has had layoffs of U.S. workers within the previous six months.  If a layoff included a U.S. worker or workers may be qualified for the job offered in the labor certification application, then RIR is not appropriate and will be denied.  If there have been other layoffs by the employer or if there have generally been layoffs in the employer’s industry such that any advertising for the subject job could be expected to generate a significant response, it will be the better strategy to file as a “regular” application.  That will postpone the test of the labor market to some time later after the initial SWA review, possibly one year or more, when labor market conditions may have changed.  

§ 3.2       How Much Time Does the Beneficiary Have Left in H-1B or Other Nonimmigrant Status

Another filing deadline or consideration of urgency may be dictated by the beneficiary’s nonimmigrant status.  As described above, the process time for a typical labor certification application is quite long, usually exceeding one year.  It is not until the labor certification is approved that an I-140 Immigrant Petition of the employer and concurrent I-485 Application to Adjust Status of the beneficiary can be filed, giving an opportunity for the alien to apply for employment authorization as a pending permanent resident.[10]  Therefore, it is important to determine right away how much time the employee has left in his or her nonimmigrant work-authorized status, typically H-1B or L-1B, and what strategies may be necessary to keep the person authorized to work in such a temporary status for as long as it takes to get the labor certification processed to successful conclusion. 

There is a limit of six years of authorized admission in the U.S. in H-1B status.[11]  However, a special provision allows H-1B nonimmigrants to be granted extensions of status in one-year increments beyond the six years when more than 365 days have passed since the filing of a labor certification application for the alien that has not been denied.[12]  Thus, it should be established what is the date 365 days before the alien reaches that six year maximum, and that date (essentially, the 5th anniversary in H-1B status) becomes  an absolute deadline by which the labor certification application should be filed in order to preserve eligibility for later filing the “7th year” H-1B extension.

If the alien is an L-1B nonimmigrant, getting the labor certification processed could be more urgent.  The limit on L-1B admission in the U.S. is five years, and there is no procedure for extensions beyond that time in the event of a long-pending labor certification.[13]  If the beneficiary qualifies, it may be possible to plan on a change of status to H-1B at the end of the 5th year in L-1B status.[14]

§ 3.3       Verify the Employer’s Ability to Pay the Offered Wage

In the labor certification process, the job offer must “clearly show that the employer has enough funds available to pay the wage or salary offered the alien.”[15]  At the time of filing the application, this is normally accomplished by a statement from the employer.  In the I-140 Immigrant Petition process, which comes after labor certification, more particular documentary evidence will be required to prove that as of the labor certification filing date (known as the “priority date”) the employer had the ability to pay in the form of federal tax returns, annual reports, audited financial statements or, in the case of a U.S. employer with 100 or more workers, a statement from a financial officer.[16] 

This requirement should be reviewed with the employer so that it is aware of the financial material it will have to provide and to spot any potential problems.  If the employer is very small or a start-up company that has not yet established positive cash flow, for example, consideration should be given to holding off on the labor certification filing.  It is possible for the labor certification to be approved but the I-140 denied for insufficient financial viability at the original filing date, because the case was filed prematurely.

§ 3.4       Where to File

Regulations require the application to be filed with the SWA serving the area where the alien proposes to be employed.[17]  Thus, if the job has a fixed permanent location, the labor certification application must be filed in that state.  On the other hand, DOL policy recognizes that some applications may involve employment at various unanticipated work sites around the U.S. with no fixed permanent location.  In those cases, the application is to be filed with the SWA having jurisdiction over the area in which the employer's main office or headquarters is located.

Thus, where the position offered is a “roving consultant” position, or simply one where the employer has multiple offices in the U.S. and anticipates it may transfer the employee between them depending on business circumstances, job flexibility to move between locations can be preserved by filing in the state of the corporate headquarters or main office. 

In some circumstances, this may make available a strategic choice between two locations for the labor certification filing.  Within its business, the employer may reasonably be able to either assign the job permanently to a fixed location in one state before filing the labor certification or designate it as “roving” or otherwise subject to unanticipated transfer.  This opens the option to choose between two states as the location to file the application where one may present a strategic benefit such as a faster process time.  Any process time or other advantage of filing in the “fixed location state,” however, should be carefully weighed against giving up the flexibility for future transfer of the job between locations that would be preserved in the “headquarters state” approach.

§ 4       Step 3 – Understand Legal Requirements and Prepare The Application 

The basic Application for Alien Labor Certification is made on DOL Form ETA 750.  There are two parts, the “Offer of Employment” (Part A), which is signed by the employer, and the “Statement of Qualifications of Alien” (Part B), which the beneficiary signs.[18]  Ultimately, Part A must state a job offer of regular, full-time employment in a permanent position that complies with the legal requirements, and Part B must reflect the alien having the education and experience to qualify for the job. 

Preparing these forms is far more complex than simply filling in the blanks with whatever basic information from the employer or alien seems responsive.  A series of important legal requirements and strategic considerations must be understood and taken into account.  They may indicate ways to complete the application that conflict with the employer’s actual business practice.  Getting to a point where all elements of the application work for the employer’s needs and fit into the web of legal requirements is an art.  Following is a discussion of the component parts of the application and relevant issues for each one.

§ 4.1       The Job Description

The first thing to establish is the basic job title and description (Items 9 and 13).   This starts with what information the employer provides as the title it uses internally and what duties are actually carried out. Typically, though, the employer’s information will need to be modified to comply with the legal requirements or address proper strategic planning.

                § 4.1.1    Recognized Occupation from a DOL Source

The title and duties must clearly place the job in a recognized occupational field as listed in one or both of two DOL-published reference sources, the “Dictionary of Occupational Titles” (DOT) and the on-line “O*NET” database. 

The first action the SWA will take upon review of a labor certification application is to assign an “occupational code” to the job offer, from one of these sources.  That code will be used to determine other issues that follow on, such as whether the prevailing wage is met or the job requirements are acceptable. 

Thus, it is important to consult these reference sources ahead of time and identify which occupational field from their lists is most appropriate and presents the best strategic advantage, and then the title and job duties should be drafted in a way to unambiguously suggest the correct field to the SWA.  The DOT and O*NET each provide standard job titles along with generally accepted language describing typical duties for such positions, with the DOT descriptions typically longer. 

The DOT includes over 12,700 job titles, ostensibly representing the full range of possible occupations in the U.S. today.   It provides detailed standardized job descriptions for all of its titles, along with a nine-digit "DOT Code."[19]  The O*NET is newer and published only on-line.  It has a similar structure to the DOT except with a more streamlined 950 occupational categories.  It assigns a six-digit "Standard Occupational Classification" (SOC) code.[20]  There is a “cross-walk” available from the DOT to show an equivalent occupational category in the more consolidated O*NET. 

The DOT is being phased out over time in favor of the O*NET.   In most cases, the SWA still assigns a DOT code, but they are in transition to assigning only SOC codes.  For now, it is important to know the desired occupational field from both sources.

                § 4.1.2    Adapting to the Specific Circumstances

Once the proper occupational category from these sources has been identified, the generalized description can be adapted to the actual duties proposed by the employer by adding appropriate detail and specifics.  Such details can reflect more particularized essential functions, and describe specific tools, technologies or work environments.  The Item 13 description should also indicate the general level of responsibility within the occupation, such as whether the position is to work on a team under close supervision, or operate at a senior level with more independent function and accountability. 

Aspects of the DOT or O*NET description that are not actually relevant to the real job circumstances should be omitted.  In the end, the written description on the form should relate sufficiently to the DOT and O*NET so that it is clear what is the correct occupational code, but should not just repeat the generic description verbatim lest it make the application appear contrived. 

For strategic reasons, differing levels of specificity may be warranted by whether the case is filed as a “regular” or “Reduction in Recruitment” application.  In RIR cases, it can be preferable to use a shorter, slightly more general form of job description, although still within the specifics of employer’s circumstances, to conform to any broad-scale advertising the employer may have carried out.  Commonly, “real world” advertising that goes into supporting an RIR case will use simplified job descriptions in a format designed to attract a wide range of applicants. The job description then used in the labor certification application form should cover general responsibilities and use statements like “may be required to ...” to add particular specific duties.

For a regular case, the description of duties requires more care to add specific details because they may be necessary to justify any specialized requirements.   Balance and professional judgment are important: the job description should have sufficient specifics to justify all requirements, but not appear to be unreasonably tailored to the specific alien and go beyond what the employer would reasonably hold out as a job offer to the U.S. work force.

The job title in Item 9 can be different from the intended DOT or O*NET source title as long as it does not create confusion with another occupational code.  It is the duties listed in Item 13 which are ultimately determinative.  If it helps to clarify, the intended source title can also be added as a parenthetical to the employer’s real title.  This is useful when the employer’s title is inherently vague, such as “Consultant.” Using “Consultant (Computer Systems Analyst)” as the title along with a description of duties commensurate with that occupation will help avoid the SWA choosing an inappropriate occupational.

All of the duties in the position should come within one occupational category.  “Combination” jobs with duties across more than one occupation should be avoided, and indeed are prohibited unless the employer can prove that it has normally employed persons with that combination of duties and/or such jobs are customary in the geographic area, or the combination is based on a special business necessity.[21]

Finally, Item 17, “Number of Employees Alien Will Supervise,” is an important related part of the form.  It is an element of the job description that will indicate whether the job involves supervisory or management responsibilities and may thus invoke a management field as the occupational code.

§ 4.2       The Position Requirements

Drafting the position requirements requires the highest level of care in the process.  Several legal constraints must be observed that may seem overly stilted and formulaic.  There are two parts to statement of requirements.  Item 14, “Minimum education, training and experience,” expresses a quantitative summary of a number of years of education and/or academic degree in a particular subject plus, if applicable, a number of years of experience in a related occupation.  Item 15, “Other Special Requirements,” allows more qualitative explication of particular skills, technologies or business practices in which experience or special knowledge is needed.

                § 4.2.1    Directly and Reasonably Related to the Job Duties

The first general principle to follow is that the Item 14 and 15 requirements must be directly and reasonably related to the Item 13 position duties. 

For example, the major field of study specified for the degree should be the area most reasonably related to the job requirements and normal for the occupation.[22]  More than one related major field can be listed as meeting the requirement, e.g., “Bachelor of Science in Computer Science, Math or Engineering,” if that is the employer’s normal hiring practice.  The “related occupation” in which a particular quantity of experience is required must also be reasonable for the job duties.

Similarly, the more detailed “other special requirements” must be directly and reasonably related to the job duties.  Within reason, this can expand on the “related occupation” experience by giving more detail on what type of background is needed in the experience.  Such expansion can include adding a quantitative subset of experience to go with the skills qualifier, e.g., “5 years experience as stock research analyst, including two years focused on retail industry.” 

                § 4.2.2    Requirements Not “Unduly Restrictive”

There may be no “unduly restrictive” requirements absent special justification based on “business necessity.”[23]  This is a specific concept in the regulations, with a set of three related, objective criteria to determine if stated requirements are excessive for the job.

                                § 4.2.2.1                Normal for the Job in the U.S.

The first related criteria in the regulations is that the requirements “shall be those normally required for the job in the U.S.”[24]  In practical terms, this means that the stated job requirements should always be objective and normal, that is, they could be met by a U.S. worker in the job market based on education, training and experience available generally in U.S. without prior connection to the employer; and it would be normal to expect such a worker, seeking the job opportunity at issue, to have such qualifications. Common sense should be applied so that the requirements do not appear written to cater to specific qualifications of alien or appear to be requirements that could only be met from prior work for the employer in the application.

A helpful DOL publication to review for what requirements are considered “normal” in the U.S. to enter a particular occupation is the “Occupational Outlook Handbook” (OOH). This is similar to the DOT and O*NET but with longer narrative descriptions of occupational groupings, and characterization of typical academic credentials and training needed. The educational degree and experience required on the form should not differ markedly from the stated OOH requirements, particularly for jobs which are intended to be entry level, or they may be considered unduly restrictive.[25] 

The OOH can be helpful, in pointing out certain occupations where an advanced academic degree is actually considered normal as the entry level requirement.  An M.B.A. degree is considered normal and thus is not an “unduly restrictive” requirement for an entry-level Market Research Analyst, for example. 

                                § 4.2.2.2                “Specific Vocational Preparation” or “Job Zone” 

The second criteria in the regulation related to the “unduly restrictive” concept is that the requirements have to be consistent with “those defined for the job in the Dictionary of Occupational Titles.”[26]  There is a numeric code assigned to every job in the DOT known as “Specific Vocational Preparation” (SVP), which imposes a quantitative maximum on the number of years of education and experience that may be required.  After determining the occupational code from the DOT, then the SWA will determine the SVP and assess whether the stated requirements exceed or comply with the SVP.

SVP is defined as “the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.”   It is expressed on a scale of 1 to 9, with each level corresponding to a range of total academic and experience preparation time that is considered normal for the occupation.  To comply with the SVP, the job requirements stated on the labor certification application must fall within the range. 

In this system, a four-year college degree counts as two years, with the “vocational preparation” experience beginning in the third year of college.  The most common SVP levels that come up in labor certification applications are 7, which allows “over 2 years up to and including 4 years” to be required, and 8, which allows “over 4 years up to and including 10 years.”  In this formula, an SVP 7 job can require a four-year Bachelor’s degree up to and including a Bachelor’s degree plus two years experience.  Anything more will be considered excessive.  In SVP 8 positions, a requirement as high as a Bachelor’s degree plus 8 years of experience could be allowed. 

Advanced academic study requirements count year for year in the SVP analysis.  Thus, in a position with SVP of 8, a two-year Master’s degree could be required plus up to six years of additional experience.  In certain positions with an SVP of 7, it can be possible to require a Master’s degree, if that academic preparation is considered a normal entry requirement, as long as no additional experience is required, because that will fill out the four-year maximum allowed.

The O*NET contains an analogous scale called the “Job Zone.”  It has 5 levels, and tries to be more flexible than the SVP by using adjectival descriptors such as “Medium Preparation Needed” or “Considerable Preparation Needed” and qualifiers like “usually need several years” of experience or training rather than strict numerical ranges.  Job Zone 4 is ostensibly equivalent to SVP of “7.0 to < 8.0,” and Job Zone 5 equivalent to SVP of 8 and above.  Under that purported standard, however, for many occupations the Job Zone and SVP ratings conflict.  Many positions in Engineering fields, for example, have an SVP rating of 8 but Job Zone rating 4.  Confusion has been the main result.  For now, DOL policy is that when SVP and the job zone conflict, the SVP rating will still apply.  Eventually, though, when the transition from DOT to O*NET is complete then Job Zone will replace SVP as the SWA’s guide to appropriate requirements. 

                                § 4.2.2.3                No Foreign Language Requirement

Requirements for fluency in a foreign language are deemed per se restrictive.[27]  The only situation where such a requirement will be considered normal is when such a skill is undisputedly central to the very definition of the occupation, such as a Technical Translator.  Even then, there can only be one foreign language required. A job requirement for more than one foreign language, such as German and French, will be considered restrictive, even if the job is to perform translation in multiple languages. 

In all other types of jobs, a foreign language requirement is a “red flag” that will be deemed restrictive and lead the SWA to require justification from the employer or make a request that it be removed.  The best strategy is to avoid a language requirement altogether unless it is a true business necessity.

                                § 4.2.2.4                “Business Necessity” Justification

A requirement that is deemed restrictive for one of the above reasons may be allowed when it is documented as arising from “business necessity.”[28]  This concept is not defined in the regulations but has been developed in administrative case law and memoranda.  The basic standard is that to establish business necessity the employer must demonstrate that “the job requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform, in a reasonable manner, the job duties as described by the employer.”[29] 

This sounds like a simple concept, but in practice, it can be quite difficult to document why a requirement for five years experience is “essential” to perform the job when the SVP would only allow two, or why a Master’s degree is essential when the normal academic requirement in the occupation is a Bachelor’s degree, for example.  Typically, the documentation must include showing that the job existed and was previously filled at the same requirements before the alien was hired, as shown by position descriptions, organizational charts and payroll records.  If the job did not exist with the listed requirements before the alien was hired, then the employer must document that its creation with the new requirements was caused by a “major change” in the business operation.  Otherwise, the DOL will view the job as not truly open to U.S. workers and deny the application.[30] 

“Business necessity” justification for a foreign language requirement is particularly difficult. The employer must show that a “significant portion” of its business is performed in a foreign language or with foreign-speaking clients or employees, and that the employee's duties require communication or reading in the foreign language, interacting with clients, customers or suppliers who only speak a foreign language.[31]  On the other hand, where the requirement is based solely on the fact that there is a need to communicate internally in the foreign language because others in employer’s workforce do not speak English, it is not sufficiently related to the occupational duties in the context of the employer's business to be justified.[32]

                § 4.2.3    “Actual Minimum Requirements”

Next, the requirements may be no more than the employer’s “actual minimum requirements” for the job opportunity.[33]  In contrast to the “unduly restrictive” analysis’ focus on objective criteria set by DOL, this concept makes a more subjective inquiry into the employer’s good faith and actual hiring practice.  The employer must document that it has not hired workers with less training or experience for similar jobs or why hiring such workers is not feasible.[34]  The requirements may be no more than the actual minimum requirements the employer sought and accepted when it hired the alien or has accepted when hiring other workers in similar jobs.  

This means that the requirements on the application may not be artificially puffed up or narrowly tailored to the alien as a way to lessen the chance of a U.S. applicant being qualified.  There is often tension in preparing a labor certification case stemming from the foreign national’s already working for the employer and being highly valued, so the employer simply wants to do what it can to get the employee his or her green card.  This creates an incentive to make the stated requirements lengthy, particularized or otherwise difficult to meet so as to create more room to reject U.S. workers.  However, it is inappropriate and grounds for denial of the application if anything other than the actual good-faith minimum requirements for the job are used in screening U.S. workers. 

The most basic application of this principle is that it must be clear that the alien meets all of the stated job requirements for education, training and experience gained before starting to work for the employer in the job.  The SWA and the DOL will review the alien’s background, and if it does not appear that he or she met the requirements at the time of hire, it will infer that the employer is incorporating new requirements the alien only meets from his or her work in the job.  If the employer was willing to hire the alien without the qualification, then it cannot be an actual minimum requirement for the job.

On the other hand, prior experience gained with the employer may be used toward meeting the requirements where the prior experience was in a different job from the position offered in the labor certification application.  The job must be “dissimilar.”  Relevant factors that DOL will consider to determine whether jobs are sufficiently dissimilar include (1) the relative job duties, supervisory responsibilities and job requirements of the positions; (2) the position of the jobs within the employer' s hierarchy; (3) the employer's prior employment practices; (4) whether and by whom the higher position has been filled previously; (5) whether the higher position is newly created; (6) the percentage of time spent performing each duty in each job; and (7) the respective salaries of each position.[35] 

In practice, the need to use experience gained with the employer to meet a position’s requirements is most appropriate when the beneficiary has worked for the employer for several years before the labor certification process is begun, and during that time has received a bona fide promotion to a senior or supervisory position based, or may have been transferred laterally to a different job based on good-faith, changing business needs.  The strategy is also more appropriate for a large employer with a defined hierarchy and regularized job categories.  In a small employer, or one without defined organizational structure, it may appear that a new job was created for the alien solely to facilitate a labor certification application with stricter requirements than in the alien’s first job. 

For example, in a case involving a consulting firm, the position of “senior consultant” was found to be “sufficiently dissimilar” to the prior position held by an alien as “associate consultant” where the job duties were more advanced and complex, supervisory functions were part of the senior consultant job, the job offered legitimately existed in the firm hierarchy and was not created for the alien, and the salaries between the positions were different.[36] 

As a related point, describing some desired qualification or skill as “preferred” should be avoided. It will simply be treated as a requirement and subject to the same review as other stated requirements.[37]  If it is truly only a preference of the employer then it is by definition not an actual minimum requirement and should not be listed as such. 

                § 4.2.4    Stating Requirements in the Alternative

In some cases, the actual minimum requirements stated on the form will need to be presented in alternative formulas to reflect some departure from the usual requirements that the employer allowed for the alien as an alternative qualification. 

The alien must actually meet, separately, the respective education and experience requirements of the job as they are stated prima facie on the Part A.  There is no provision in the labor certification process for rating certain amounts of professional experience as per se equivalent to amounts of academic preparation, similar to the “3-for-1” rule in the H-1B regulations.[38]  Thus, where a regular four-year Bachelor’s degree is stated as the requirement, the alien must hold such a degree from an accredited U.S. institution or the foreign equivalent degree.   If the alien has only the equivalent of three years of study toward the accredited U.S. Bachelor’s degree and three years of professional experience, he or she may qualify for H-1B status by substituting the three years of experience for the missing one year of education; but for labor certification purposes, the alien will not be considered to meet a Bachelor’s degree requirement stated on the face of the application form because the formula only applies in H-1B cases.  Instead, if the employer was willing to hire the alien with an alternative combination of education and experience, then such a formula must be stated expressly on the form as an alternative minimum requirement that will be accepted.  Of course, U.S. workers with the combination must then be considered.

Some flexibility in the stated alternative combination is available.  There is no rule that fixes a ratio in years of experience to education that must be used like the H-1B “3-for-1” rule.  The employer can express whatever reasonable ratio it has in fact normally used as the minimum requirement. 

Stating an alternative combination of education and experience is also appropriate where the beneficiary may have a four- year Bachelor’s degree, but not in the normally required subject, in lieu of which the employer has accepted some amount of professional experience in the relevant field.   Again, it must be expressed on the Part A form that the employer will accept this alternative degree and experience combination.

The usual way to express alternative requirements on the form is to place an asterisk next to the usual credential, leading to a statement in the bottom of the Item 15 space that states “Will accept …” and expresses the alternative formula. 

§ 4.3       Prevailing Wage

The job salary offered in Item 12 of the application presents the next major legal issue to consider.  It must equal or exceed the “prevailing wage” for the position.[39]  The prevailing wage is determined by the SWA based on wage and salary data compiled by the Department of Labor, as applied to the occupational code set for the job. The data is available publicly, so the practitioner can anticipate what prevailing wage will apply to a contemplated job offer ahead of time and advise the employer.  Matching the employer’s actual salary offer to the appropriate prevailing wage is then an important strategic factor in drafting the job description and level of requirements. 

Following is a discussion of the data sources and other relevant factors in a prevailing wage determination.

§ 4.3.1   Davis-Bacon Act and McNamara-O’Hara Service Contract Act.

Wages in certain occupations are expressly governed by federal statute.  If the job opportunity is in an occupational field subject to a wage determination under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act, the prevailing wage will be the rate in the area of employment set by this statutory determination.[40]  The first step in prevailing wage analysis is to determine if either of these statutes apply. 

The Davis-Bacon Act[41] and McNamara-O’Hara Service Contract Act[42] (“SCA”) are statutes that require federal government contractors to pay wage rates set by DOL to workers performing duties in certain occupations under a public contract.  If a position in a labor certification application is one for which the DOL has established a prevailing wage under the Davis-Bacon or Service Contract Acts, it will be the prevailing wage to which the employer is held for purposes of the application.  The Davis-Bacon Act applies to “laborers and mechanics” in contracts for construction, alteration or repair of public buildings or works.  The SCA applies more broadly to “service employees” in regular contracts for services. This has given rise to a list of “service” occupations for which DOL publishes prevailing wages under SCA. The list includes a variety of professional and technical positions. 

                § 4.3.2    Union contract

If the job opportunity is covered by a union contract negotiated at arms length between a union and the employer and contains a wage rate applicable to the occupation, then that wage is presumptively established as the accepted prevailing wage.[43]  Engineering or technical positions in government agencies, utilities and large manufacturers, and attorney or paralegal positions in government and legal services organizations are examples where professional positions may be unionized and subject to collective bargaining.  It is helpful to have a prevailing wage set in this manner because it eliminates the need for further comparison with occupational sector-wide wage levels.

                § 4.3.3    “Occupational Employment Statistics” (OES) Data

If the job opportunity is not covered by the Davis-Bacon or Service Contract Acts or a collective bargaining agreement, the prevailing wage shall be determined as the “average rate of wages, that is, the rate of wages to be determined, to the extent feasible, by adding the wage paid to workers similarly employed in the area of intended employment and dividing the total by the number of such workers.”[44]  Recognizing that such a determination may not always be precise, the regulations provide leeway that “the wage set forth in the application shall be considered as meeting the prevailing wage standard if it is within 5 percent” of the average rate of wages.[45]  This is informally known as the “95% rule”.  The salary on the application must simply be 95% of the established prevailing wage.

“Similarly employed” means “having substantially comparable jobs in the occupational category in the area of intended employment.”  If there are no such workers employed in the area other than by the applicant, then “similarly employed” will mean:

                “Having jobs requiring a substantially similar level of skills within the area of intended employment;” or

                “If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment.”[46]

“Area of intended employment” means “the area within normal commuting distance of the place (address) of intended employment.  If the place of intended employment is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance of the place of intended employment.”[47]

To make this “average rate of wages” determination, the SWA uses data from the “Occupational Employment Statistics” (“OES”) program of the DOL’s Bureau of Labor Statistics.[48]  In this program, the DOL conducts an annual-salary survey process around the country of a broad range of public and private employers and publishes the results in a database provided to the SWAs and over the internet to the public in its “On-line Wage Library” (OWL) site.[49]  The OES database is updated annually in January, and its results are considered valid during the calendar year.  The survey data is organized by occupational code, geographic location and skill level.

Prevailing wage analysis in the OES system begins with the determination of a job offer’s appropriate occupational classification in the Dictionary of Occupational Titles, as described above.[50] This is “crosswalked” to a matching O*NET job description to determine the “Standard Occupation Code” (SOC).[51]   

Next, a special code for the “area of intended employment” is determined.  OES data assigns most locations to a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA) in order to implement the regulatory requirement that the area encompass “normal commuting distance.” MSAs usually are counties with populations of about 50,000 or more. PMSAs are generally larger, more populous (1 million +) metropolitan areas. Areas that do not come under an MSA or PMSA are characterized as “Balance of State” (BOS) areas. The OES attempts to keep BOS area designations at a size staying within “normal commuting distance.” Because these are more sparsely populated areas with lower levels of economic activity, in many cases the BOS will not have sufficient survey response data to establish a prevailing wage in a particular occupation. Then the OES system will use data from a contiguous area, or if necessary, from statewide data.

The final variable to establish is the skill level of the job. This determination is based on the level of responsibility in the job duties and on the extent of position requirements. There are only two levels used in the OES system, “beginning” (Level I) and “fully competent” (Level II).

Level I employees are defined as:

“Beginning level employees who have a basic understanding of the occupation through education or experience. They perform routine or moderately complex tasks that require limited exercise of judgment and provide experience and familiarization with the employer’s methods, practices, and programs. They may assist staff performing tasks requiring skills equivalent to a Level II and may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Work is closely monitored and reviewed for accuracy.”

Level II employees are defined as:

“Fully competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. They may supervise or provide direction to staff performing tasks requiring skills equivalent to a Level I. These employees receive only technical guidance and their work is reviewed for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations.”[52]

The primary consideration for the skilllevel determination will be the level of independent responsibility and judgment, supervision and the job skills described in the position duties.  Thus, the employer should pay careful attention to strategic drafting of job description if it wishes to convey that a job is entry level and obtain a Level I prevailing wage designation.  The description should include terms such as “use basic understanding of . . . ,” “perform range of moderately complex assignments in . . . ,” “work under supervision of manager . . . ,” etc. There is necessarily an element of judgment in the SWA’s decision between Level I or II, and some are more flexible than others in applying the distinction.[53]

The level of stated position requirements are the other major factor. A Level I position generally must require no more than the usual minimum entry-level academic requirement in the occupation.  For a typical professional job, that is usually a Bachelor’s degree in the field. Depending on the circumstances and the view of the particular SWA, a requirement of one to two years of relevant experience in addition to the academic qualification may also be permissible. Requiring additional experience or an academic degree that is more advanced than the usual entry-level qualification will convert the position into Level II.

In certain fields, it is possible to have an advanced degree requirement and still maintain Level I, where the degree is acknowledged as a normal entry level requirement into the occupation.  Market research analyst, management consultant, scientific researcher, librarian and attorney are examples of positions which normally require a Master’s or graduate professional degree as an entry-level qualification.  The normal source to which the SWA will refer for whether an advanced degree is objectively acknowledged as an entry-level qualification is the Occupational Outlook Handbook.[54]

Finally, using these three variables, the OES database will yield an “average wage rate” figure for the job.  If the employer’s offered salary is 95% of this figure or greater, then it has met the prevailing wage requirement.

Often the wage will be listed as an hourly figure.  That figure is multiplied by 2080 (40 hours per week x 52 weeks) to determine annual salary for a regular full-time position.[55]   If the full-time position is only 35 hours per week, to avoid confusion the hourly pay rate should be used on the form and for comparison to the prevailing wage. Some positions inherently have schedules that do not easily break down to an hourly wage (such as teachers), and for those positions the OES will report only an annual salary.

The OES system has been widely criticized by employers for its use of only two skill levels failing to reflect the normal progression of advancement and pay increases in the professional workplace. The definitions encompass only entry-level, straight-out-of-college positions and senior-level, fully-independent, highly-experienced employees. There are no mid-level professional descriptions for employees who have worked their way beyond the entry-level years but do not yet function on a completely independent senior level.  The Level II wages are perceived as unfair and inaccurate for such positions because the data combines workers having anywhere from a Bachelor’s degree plus two years or more experience to persons operating at the most senior levels with advanced academic qualifications and/or 10, 20 or more years of experience.

The actual numbers bear this out: Level II wages reported by the system average 60% or more higher than Level I. It is not realistic to expect that within two to three years of starting in an occupation after college the average worker receives pay increases of 60%, yet the OES data suggests that the employer must indeed pay such amounts. For these reasons, a labor certification application for a mid-level position often presents unique challenges in meeting the prevailing wage.

A positive development of the OES system is that employers can now determine the SWA’s prevailing wage methodology in advance through the OWL before beginning the labor certification process and plan accordingly.  It is also quite helpful that OWL site also contains a full set of Service Contract Act wage data as well as the OES database.  Thus, practitioners can quickly determine if a job is subject to the SCA list and, if so, the appropriate prevailing wage under that source. As described above, if there is an applicable SCA wage it will supersede any result from the OES.  It is important to note also that there is no 5% leeway from an SCA wage result.  To meet the prevailing wage requirement, the offer must equal or exceed 100% of the SCA figure. 

§ 4.3.4    Special Rule for Certain Academic, Non-profit and Research Organizations

The prevailing wage rules make a special provision for certain types of nonprofit and government employers where it is recognized to be normal to pay less to workers in certain occupations than what they might earn in the sector at large.    Where the employer is an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization, the prevailing wage computation may be based on separate data from other such institutions and organizations.[56]  In that way, these employers are allowed a different, typically lower, prevailing wage standard than the broader private or for-profit sector. 

To accommodate prevailing wage analysis for these employers, the OES system includes a separate database known as the “EDC” data source which contains only data collected from these types of institutions or organizations.[57]  Use of the special data applies to all occupations with these types of employers not just to research positions. The Level I/Level II distinction applies in the same manner as with other OES data.

To qualify for use of the EDC data source, an academic institution must meet the federal statutory definition of an “institution of higher education” in Sections 101(a) of the Higher Education Act of 1965.[58] [59] An “affiliated or related nonprofit entity” is a non-profit organization such as a hospital or medical or research institution that is “connected or associated with the institution of higher education” in one of various ways.[60]  A “nonprofit research organization” must be “primarily engaged in basic research and/or applied research.”[61]  A “governmental research organization” must have as its primary mission the “performance or promotion of basic and/or applied research.[62]  Either of the non-profit organization categories must be qualified as tax-exempt in the appropriate classification from the Internal Revenue Service.[63]  When the employer wants the SWA to use the EDC data source it must submit evidence that it qualifies under these requirements. 

                § 4.3.5    The Employer-Provided Wage Survey

Where an employer feels that the OES system does not contain wage data appropriate to the position, or that the data is incorrect, DOL policy allows it the option to provide wage data that it feels is more appropriate or correct with a request that such data be used instead of the OES for determination of the prevailing wage.[64]  The wage data may be contained in a published survey or in a survey that has been conducted by or for the employer.

In practice, this is a very difficult option.  To justify use of the survey the employer must provide extensive information about the survey methodology showing that it meets a seven-point set of criteria. Information from an employer that “consists merely of speculation, subjective impressions, or pleas that it cannot afford to pay the prevailing wage rate determined by the [SWA] will be rejected.[65]

Briefly, the criteria are:

                (1)  The data upon which the survey is based must have been collected within twenty-four months;

                (2)  For a published survey, it must have been published within twenty-four months and be the most current edition;

                (3)  The survey must discretely reflect the area of intended employment.   No larger sample may be used unless it is proven there are not sufficient workers in the area; 

                (4)  The employer job description must adequately match the survey job description;

                (5)  The wage data must have been collected across industries that employ workers in the occupation;

                (6)  The wage determination must provide an arithmetic mean (weighted average) of wages for workers in the occupational classification in the area of intended employment; and

                (7)  The survey must identify a show that its methodology is reasonable and consistent with recognized statistical standards and principles for establishing prevailing wages.[66]

The SWA must then make a determination with regard to the adequacy of the data provided and its adherence to these criteria before accepting the survey.  In practice, acceptance of employer-submitted surveys has been limited or, in some states, virtually nonexistent.  In other states, a few well-known published surveys have been accepted, but only after extensive persuasion of the SWA and corresponding DOL regional office of the survey’s compliance with the seven points.   In all cases, substantial delay can be expected while the SWA evaluates the request and seeks an opinion from DOL. 

Consequently, the employer-provided survey option is of limited use.  Practitioners considering the approach should carefully review the two relevant DOL policy memoranda. 

                § 4.3.6    Requesting a Prevailing Wage Determination in Advance

It is possible to obtain an advisory opinion from the SWA about the prevailing wage applicable to a job prior to filing the labor certification application.  The form to use is simply the same prevailing wage request used in the H-1B process.   Typically it includes the following information about the job:

·         Title;

·         Detailed description of duties;

·         Requirements for the position, including academic degree and any specific experience;

·         Geographic location;

·         Position’s supervisor;

·         Whether the position has supervisory duties, and if so, the number and titles of personnel that are supervised by the position, and

·         Proposed salary, although with some SWAs the application may be submitted without the salary as a “blind” request for the prevailing wage to be determined.

This is a useful strategy when there are uncertainties about how the SWA will respond in such areas as what occupational code or skill level it will assign.  Problems can be identified, discussed with SWA personnel and resolved without waiting for them to arise after filing of the application. The determination that is issued will be valid for the calendar year and can be submitted with the application to establish in advance that the prevailing wage has been met.  Where processing time stretches into the next calendar year so that the data source in the determination becomes outdated, the SWA may redo the analysis, but the earlier determination will still be useful for establishing the occupational code and skill level applicable to the job offer.

                § 4.3.7    Prospective Nature of the Wage Offer

The labor certification process states an offer of regular employment in a permanent position that is prospective, for when the person becomes a permanent resident in the U.S. There is no requirement that the beneficiary actually be working for the employer when the application is filed. The salary offer is similarly prospective, to be paid when the employee becomes a permanent resident.  It is that future salary that must meet the prevailing wage.  Thus, the employer is not precluded from filing the application if the salary being paid to the beneficiary at the time of filing is less than what the SWA determines to be the prevailing wage.  If the employer is required to modify the application after filing to comply with an SWA prevailing wage determination, it may legally do so without immediately giving the person an actual raise to the new salary level.  Instead, it must be prepared to offer the new salary at such time as the alien obtains permanent residence, which may require one to two years of further process time.  This allows for an orderly transition.

The employer should be careful not to abuse this principle, however, by regularly filing applications with much higher salary offers than what a beneficiary earns, counting on an excessively long process time before the person becomes a permanent resident and is due the salary.  It may be tempting to do this in order to base the application on a senior level position having more complex requirements expected to attract fewer U.S. workers, or qualify a beneficiary for EB-2 immigrant classification, with either strategy invoking a higher prevailing wage than what the employer is willing to pay at the time of the application.  If the salary discrepancy is too great, it may lead to questioning from DOL or later from USCIS in the immigrant petition (I-140) process about whether the job offer was bona fide at the time of filing.

In the converse problem, practitioners should be careful in a situation where the wage does not meet Level II for an occupation and the employer wants to artificially lower the stated level of responsibility and requirements in a job to an entry level to qualify for a Level I determination, but it appears the employee is actually working at a senior level of responsibility.  This may involve misrepresentation.

§ 4.4.      Full-time, Year-round Employment

The hours stated for the job offer in Item 10 must reflect full-time employment.[67]  Thirty-five hours per week or more will be considered full time.  There is no permanent labor certification process available for part-time employment of less than 35 hours per week. 

A job which by its nature may only be performed during certain seasons of the year, such as that of a landscaper in northern climates, is not considered a permanent position eligible for labor certification.  The duties must be continuous or capable of being carried on throughout the year.[68] 

§ 4.5.      Job Location

Item 7, the “Address Where Alien Will Work,” is the job location that will determine proper jurisdiction for filing the application.[69]  If the job is fixed at one permanent location, that address should be entered, and the application must be filed in the named state.  If the job is subject to transfer between multiple locations, language stating “permanent base at company headquarters in Item 4 [the employer’s address]; subject to transfer to multiple unanticipated locations based on business need” or something similar should be entered, at which point, the filing jurisdiction defaults to the state shown in the headquarters address.

Where the job is a “roving” position that involves unanticipated relocation between multiple client sites, then “willingness to travel or relocate based on client project needs” or something similar should also be listed in the position requirements.

§ 4.6       Establishing the Immigrant Preference Category

It is important to plan for the employment-based immigrant preference eligibility category that will be established by the labor certification application to use in the I-140 Immigrant Petition.  Depending on the job requirements and on the alien’s credentials, it will either be “second preference,” for “members of the professions holding advanced degrees or their equivalent” or “third preference,” for “skilled workers, professionals and other workers,” also known as the “EB-2” and “EB-3” categories.[70]  

The significance is that in both of these categories total annual permanent immigration is limited by fixed quotas on both a per-country and world-wide basis, and this can lead to lengthy backlogs of waiting time when the categories become over-subscribed. Since 2001, there have been no backlogs, but such delays could return in the future.  Historically, when backlogs have arisen, they are far less severe in the “advanced degree” EB-2 category.  Thus, it is frequently a goal in the process to qualify the beneficiary for EB-2 eligibility, particularly if he or she is from India or China, which are most affected by per-country limits.  

Two elements are necessary for EB-2 classification in an I-140 petition.  First, the beneficiary must have an advanced degree (i.e., Master’s degree or higher) or its equivalent. A Bachelor’s degree followed by 5 years of progressive experience in the specialty field qualifies as an equivalent credential.[71]  Second, the labor certification on which the I-140 is based must show that the job requires a professional holding such qualifications. [72]

Thus, to qualify a beneficiary for EB-2, the Part A job offer must be properly written.  It should clearly state a requirement for a Master’s degree or higher, or if the alien does not have a Master’s degree and qualification is sought based on a Bachelor’s degree and five years experience, the requirements should be expressed that in the alternative the employer will accept a Bachelor’s degree plus 5 years of post-graduate, progressive experience in the specialty field of the job.  There should be no ambiguity about the experience needing to be after attainment of the Bachelor’s degree, and about the experience needing to involve progressive development of skills and responsibility in the field most directly related to the job.  A general statement of just “B.S. + 5 years experience” without these specifics may not be sufficient.[73] 

It frequently arises that the goal of EB-2 classification creates conflicts with other strategy considerations or legal requirements in the case that need to be reconciled.  In most cases, for example, requirements at the advanced degree or B.S. plus 5 years experience level will invoke Level II prevailing wage analysis.  In certain job categories such requirements will also exceed the allowed Standard Vocational Preparation or Job Zone and thus be deemed unduly restrictive. 

§ 4.7       The Alien’s Qualifications

Part B of the Labor Certification Application calls for detailed information about the alien’s education, training and experience in a format similar to a resume.  The most important point about this section is that it must show how the alien meets the job requirements in Part A and did so before starting work in the job offered. 

The respective education and work experience qualifications must be met separately.  In the labor certification process there is no equivalence between periods of professional experience and periods of education allowed other than what is expressly stated in Part A. 

Thus, the education history shown in Item 11 must meet the education requirement in Item 14 of Part A. If the beneficiary’s degree is from a foreign university, it is important to have an evaluation performed for its equivalence to a U.S. degree.  Some foreign degrees denominated “Bachelor of Science” are only three years of study and do not equate to a regular U.S. 4-year Bachelor’s degree; thus they would not meet a regular requirement for a Bachelor’s degree as that term is used for job requirements in the U.S.  It is also important for the academic subject of the foreign degree to match the U.S. requirement.  If there is any ambiguity regarding equivalence of the degree field, it should be addressed in the expert evaluation report. 

In turn, the work experience shown in Item 15 of the Part B must meet the experience requirements listed in Items 14 and/or 15 on Part A.  It must show a sufficient quantity of time in years and/or months and provide enough details about prior jobs to show that the experience is in the required fields.  Care should be taken to watch for gaps between jobs in the alien’s work history that will lessen the total amount of prior experience.  

Any other particular skills or knowledge included in the job requirements should be clear in the alien’s background either as part of a prior job in Item 15 or as part of “additional qualifications and Skills Alien Possesses” (Item 12), licenses (Item 13) or additional supporting documents listed (Item 14).  These items can list other non-academic professional training, coursework or certifications, professional licenses and other important special skills related to the job requirements.

There are many entries of dates to make on the Part B form, marking the start and end of periods of schooling or jobs.  The “month/year” format should be followed.  Expressing one of these dates as just an open-ended year is not acceptable even if it seems not to make a difference in the total qualification. It is also particularly important to make sure the dates given are accurate.  Any questions about exact month/year milestones in the education or work history should be resolved with the alien before the application is finalized and checked for consistency with supporting documentation such as academic transcripts and reference letters. 

The alien should be instructed to provide detailed reference letters verifying all prior work experience that is being used to satisfy the Part A requirements.  Such letters should come from an authorized official of the prior employer or someone who worked directly with the alien and has first hand knowledge.   They should be printed on the employer’s letterhead and contain the following:

  • State the job or jobs held by the alien and identify the precise start and end dates of prior employment at least in a month/year format.
  • Summarize the duties and responsibilities of the alien in each relevant position
  • Describe any particularly relevant project accomplishments
  • Describe particular technical skills or special expertise gained in the job
  • Collectively, the reference letters should verify that the alien has the all specific work-related experience and/or special skills or knowledge required in the application for labor certification, at both the quantitative (i.e. number of years or months in a field) and qualitative (i.e. more particular description of type of experience and skills or knowledge required) levels.  At the same time they should not appear to have been written by the alien or alien’s attorney to parrot the Part A statement of requirements.  They should be independent statements. 

In the event a prior employer no longer exists, it can be acceptable to obtain reference letters from someone with whom the alien worked at the prior employer who may have moved on to a different setting, as long as the person is qualified to comment from first hand knowledge, and supplement the statement with annual pay statements or other records of the alien that tend to corroborate the statement.

§ 4.8       Consistency with Other Filings

Any one labor certification application can raise a host of individual legal and strategy issues. For large employers who sponsor a significant number of foreign national employees it is important to go to another level of analysis and look at consistency in how issues are approached across all immigration filings.  There should be a rational framework of job titles, descriptions and requirements that reflects the employer’s real business circumstances and a well-thought-out policy, applied to all employees fairly, for when and under what circumstances the employer will begin the permanent residence process for an employee and what strategies it will adopt in the case. 

For example, if an employer files multiple applications for what appear to be the same or similar jobs, but some have more burdensome degree and experience requirements than others, the SWA or DOL may sense that the employer has used requirements unfairly tailored to respective aliens’ backgrounds that are beyond its actual minimum requirements and call for an explanation. 

For practitioners, the goal of consistency can require working with the employer’s human resources officials to look at a group of individual cases and rationalize them into a coherent system and assist in longer-range strategic planning with respect to foreign national hiring. 

For employers, this is one reason why it is usually better policy to have one attorney working for the company to represent it in all immigration-related matters rather than directing employees to hire their own individual attorneys.   That arrangement is permitted under law, but the employer should remember that any attorney the foreign national hires would be representing the company before the SWA and DOL, regardless of who pays the fees. If multiple attorneys are representing the company in separate cases, all of whom owe primary loyalty to the interests of their alien clients, it could result in inconsistent representations in the filings.  As well, the employer might not be comfortable being represented by an attorney with whom it does not have a regular relationship and who prepares forms and other documents for it which, when signed, may create binding legal obligations to the foreign national and to the government.

Finally, consistency with any H-1B or L-1 petition filed for the employee is also important.  When adjudicating an I-140 petition, USCIS may compare the labor certification and I-140 with employer’s H-1B petition on file for the alien, for any unusual inconsistencies.  Some differences are understandable because the H-1B petition has different legal requirements to satisfy.  However, any glaring discrepancy that suggests the employee’s job is materially different may cause USCIS to question whether the job offer in the labor certification is bona fide.

§ 5       Step 4 - The Reduction in Recruitment Request

In the regular labor certification process, after filing, the employer carries out specific recruitment activities under supervision of the SWA to test the labor market, and submits a detailed report of the results.[74]  This can be reduced or waived by the DOL if the employer satisfactorily documents that it “has adequately tested the labor market with no success” prior to filing.[75]  To request “reduction in recruitment” the employer submits a written request with the application along with documentary evidence that within the immediately preceding six months it “has made good- faith efforts to recruit U.S. workers for the job opportunity, at least at the prevailing wage and working conditions, through sources normal to the occupation” and “any other information which the employer believes will support the contention that further recruitment will be unsuccessful.”[76]

When it works, RIR has major advantages over the regular process. In many jurisdictions the process time is much faster.  The cost will be less because it avoids the expense of individualized advertising and response effort in the structured process.

§ 5.1       When Reduction in Recruitment is Appropriate

Since 1996, DOL policy has encouraged use of reduction in recruitment (also known as “RIR”) in appropriate cases as a tool for efficiency in the labor certification process.  By its nature RIR uses fewer resources of the SWA.  The types of cases where RIR is encouraged are those:

(1)     for occupations where there is little or no availability of U.S. workers,

(2)     which have no restrictive requirements,

(3)     which meet prevailing wage,

(4)  and for which the employer can show adequate recruitment through sources normal to the industry within the previous 6 months.[77]

 

The element that RIR is most appropriate “where there is little or no availability of U.S. workers” means that DOL’s view of overall local labor market conditions becomes a major factor in the viability of RIR for an occupation irrespective of an employer’s individual recruitment efforts. Historically, when the economy and job market have been strong and shortages of U.S. workers in a field well-documented, the DOL has been quite flexible in granting RIR based on certain minimum levels of attempted recruitment and a basic statement from the employer. Conversely, in a weak economy with layoffs and high unemployment, the DOL will cut back on RIR approvals and force employers to use the more structured regular process. 

Thus, success in RIR often depends on economic vicissitudes beyond the applicant’s control, and is most appropriate when objective labor market conditions at the time of filing have created an industry-wide shortage of workers in an occupation that is acknowledged by DOL. 

Other factors indicating when RIR is appropriate and viable will come from the employer’s circumstances.  The most favorable situation is the “naturally occurring” RIR, where the employer in fact has one or more unfilled job openings and has been advertising them publicly on its own for real recruitment purposes.  Or it may have an ongoing campaign of such recruitment.  This type of clearly good faith recruitment effort will garner a more favorable response than advertisements and postings that appear to have been placed primarily for purposes of a labor certification case. 

Size of the employer can matter.  RIR is particularly appropriate for a large employer with multiple openings in a job category which, over time, it is not able to fill.  This is where it is most likely there will be an ongoing public recruitment campaign.  If there are multiple aliens in the job category for whom the employer wishes to file labor certification then one RIR request showing a 6 month pattern of recruitment can be used to support all of the applications. This realizes efficiencies of scale for the employer and for DOL, in accordance with DOL’s goal for the process.

The level of specialization in the job at issue makes a difference.  RIR works best where the position does not carry highly individualized or unusual duties or overly specialized requirements that the DOL might find to be “unduly restrictive.”  A simplified form of job description and requirements that can be reasonably common to all of the job openings or across multiple applications will be viewed more favorably. 

Recruitment activities can be planned and carried out in advance to support one or more labor certification applications if the employer has not carried them out already.  If the employer anticipates filing a labor certification application for a job opportunity it can be advised on how to structure a recruitment process, or supplement activities already undertaken, sufficient to meet DOL standards.  Care needs to be taken however that the pattern does not appear contrived or not to have been undertaken in good faith.  

RIR can be acceptable when there is only one job opening that is already filled by the alien, but in more limited circumstances.  In that case it is best if the application process is started immediately after the alien was recruited and hired and is based on the employer’s real search for a qualified candidate that was undertaken within the prior 6 months and resulted in hiring of the alien.  The employer must be able to attest in good faith that no qualified U.S. applicants sought the job and that is why it was offered to the alien.

For small employers or other situations where there is no real job opening other than the alien’s and it has been more than 6 months since he or she was hired, it can be possible in limited circumstances to prospectively structure a pattern of advertisements and other recruitment activities to “adequately test” the labor market and then use them to document an RIR application.  The employer should be confident going in to the process that it will encounter a true unavailability of qualified applicants, and be able to attest afterwards that that was the result.  Close scrutiny can be expected from DOL.  On the other hand, the employer may be averse to the idea of publishing advertisements in its own name as a “test” of labor market when it is not, in fact, actively seeking to fill any position.  The regular process should be used then.

RIR is inappropriate when the employer has laid off U.S. workers in the relevant occupation within six months prior to filing.  Then it can not represent in good faith that it has encountered non-availability of U.S. workers.  It would also be unusual for the employer to advertise an open job or jobs to the public when related positions are being cut.  If the RIR case is filed anyway, and DOL becomes aware that there were layoffs during the recruitment period, it will require detailed evidence about the layoffs and what consideration was given to hiring a laid off U.S. worker into the position in the application.[78]

§ 5.2       Establishing the Pattern of Recruitment

In RIR the employer must document efforts to recruit U.S. workers without success through “recruitment sources normal to the occupation.”[79]  Depending on the occupation and the level of job, and varying with the employer’s circumstances, such sources may include, but are not limited to, the following:

·         Print advertisements, in a newspaper of general circulation in the area of employment or in a relevant professional journal.  The appropriate print advertising source will depend on the nature of the occupation and level of requirements.  In positions requiring an advanced degree or paying high salaries, DOL often prefers a journal.  Over other factors though, it should be a print source that is normally used to recruit workers in the industry and occupation in the area and that the employer normally uses.  Documentation to submit will be full page tear sheets showing the ad placement and the date and name of the publication.  

·         Internet advertising on the company’s own web site or on a third-party commercial job listing site. Again, the ads should be placed in a manner that is normally used by the employer and in the industry and occupation at large.  It is important to keep good documentation by regularly printing and keeping copies of the on-line posting in a manner that shows the date and web source. 

·         Internet advertising is also recommended on America’s Job Bank, a job listing site run by DOL. It can be found at http://www.ajb.dni.us/.  Again, printed hard copy records of the posting should be retained. 

·         Public and/or private employment agencies, such as recruiters or “headhunters.” Documentation will be contracts with the agencies showing actual job referrals. 

·         College or university recruitment.  This can be documented with copies of on-campus postings, correspondence with the placement office, etc.

·         Vocational, trade or technical school recruitment, in applicable occupations.

·         Recruitment through a labor union in the occupation.

·         Policies or procedures for internal publicity of job openings in the employer’s organization and/or encouragement of applications and development or promotion from within. Documentation would include copies of relevant policies as well as internal publicity of actual relevant job openings by posting, newsletter, e-mail, intranet, etc.

·         Policies or procedures for encouraging employees of the organization to recruit and refer their friends or outside colleagues for employment with the company, such as referral bonus incentives

·         Participation in job fairs relevant to the occupation and the employer’s area.  Documentation would include advertising or job postings circulated at the fair, and publicity for the fair showing the employer as a participant.[80]

It is important to work closely with the employer in advance to keep well-organized documentation of all recruitment activity.  This will be necessary to put together a thorough package of evidence to support the RIR request.  In particular the employer should be reminded to keep tearsheets from all newspaper or journal advertisements, and contemporaneous hard-copy printouts of on-line postings.  Newspaper tearsheets may be difficult to locate months later, and direct proof of on-line posting may be impossible to recreate.  Certificates of publication from a newspaper or on-line service may be used but as secondary evidence they are less preferable.

                § 5.3       Deadlines and Timing

To support the RIR request, these activities must be within six months prior to filing.  This deadline is strict.  Advertising or other recruitment that took place more than six months prior to filing will not be accepted as part of the basis for granting RIR.  Once the employer starts recruitment that it anticipates using to support an RIR application it should be mindful of the six month deadline to finalize and file the application.

Print ads and other activity more than six months old may still be submitted as secondary background evidence to show longer term historical patterns of recruitment. This will corroborate the employer’s good faith in undertaking the more recent qualifying recruitment efforts.

Another timing requirement comes at the end of the period.  The employer must wait 30 days after any published advertisement or job posting (with the exception of the special Notice of Job Opportunity posting) to allow time for applicants to respond.  This means the window to place advertisements or other public notice of the job opening is five months.  The final 30 days of the period are for interviewing and follow-up with applicants and documenting the results. 

§ 5.4       How Much and What Type of Recruitment is Sufficient

One of the most frustrating aspects of RIR practice is a lack of guidance from DOL on the specific type and frequency of recruitment efforts it expects to establish a “good faith pattern.”  It is up to the employer to make a best judgment as to what is appropriate in each case.  A few general guidelines bear discussion however. 

At least some print advertising in a newspaper or journal remains the central form of recruitment DOL expects to see in every case, despite the reality that in the “real world” most employers today prefer internet based or other sources to fill a job opening.  A minimum of one print advertisement is always required, although more is usually advisable.[81] 

In the past, some DOL regions had offered a rough guideline of expecting to see one to two print advertisements in an occupation with a “shortage” of U.S. workers, and two to four advertisements in occupations it deemed to have “availability.”  DOL has since rescinded this advice and does not offer such a specific quantitative requirement. 

More recent guidance in an internal DOL memorandum is general in nature and focuses on the overall pattern of activity and qualitative evaluation of whether it is adequate to test the labor market for the occupation.  It states that where RIR is otherwise appropriate for the area of intended employment and the occupation, the necessary pattern can be established with (1) one print advertisement in a newspaper of general circulation or a relevant journal, plus (2) “enough other activities to show evidence that a pattern of recruitment has been completed to adequately test the labor market for the occupation of the subject application” which may include a combination of a SWA job order, internal company recruitment, company and commercial internet web-page ads, community college or other job fairs, private employment agency or “additional print advertisements.”[82] 

The guidance is helpful because it acknowledges the reality that non-print sources such as internet posting are now the most “normal” and indeed the most likely to provide qualified responses for most employers and occupational fields.    Thus, an RIR request will be considered where there is at least one print advertisement and a strong pattern of other activities like those described above.  Alternatively, the request may still be based on a more extensive number of traditional print advertisements.

§ 5.5       Content of Advertising

The content of a print advertisement, on-line posting or other public notice of the job does not need to repeat all of the job duties and requirements from the ETA 750 form, in the format of a “regular” process advertisement.[83]  It is understood that cost considerations often dictate keeping print advertisements succinct.  On-line postings and other notices will allow room for more detail.  In all cases, advertisements and public postings should be prepared in the employer’s normal style.  There are certain basic guidelines:

·         At minimum, the advertisement or posting should contain enough information to make clear the occupation of the job, such as specifying the title and a summary description.

·         The employer’s name and contact information must be identified. 

·         The physical address or geographic location of the job must be specified.

·         There must be a clear way to submit resumes or applications direct to the employer. If the employer’s normal way to request submission of resumes is by e-mail, that is fine to include, but it is also advisable to include a regular mailing address. 

·         It is not necessary to include salary information.

·         Substantively, it is best to describe the duties and requirements in more general terms than are on the actual labor certification application, in an effort to attract the broadest number of potentially qualified applicants.  

§ 5.6       Notice of Job Opportunity Posting

A related but separate requirement is a 10-day workplace “Notice of Job Opportunity” posting. This is not a “normal” source of recruitment, but a form of employee notice prescribed in the regulations that gives details about the job offer and has additional language to notify workers about rights they have in the process.[84]  It is similar to the posting requirement in a “regular” case, except conducted during the 6 month pre-filing pattern of recruitment activity. [85]

The content of a Notice of Job Opportunity posting must include the job title, full description and statement of requirements, and the salary.  A range may be used for the salary as long as the entire range meets the prevailing wage.  Interested applicants will be directed to report to the employer.[86]  The posting must also contain an express statement informing employees that (1) the notice “is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity,” and (2) “any person may provide documentary evidence bearing on the application to the local Employment Service Office [i.e. the SWA] and/or the regional Certifying Officer of the U.S. Department of Labor.”[87] 

The notice must be posted for 10 consecutive business days in a place where employee job notices are normally placed.  At the end of the period the employer attaches a signed certification stating the dates and location of the posting and attesting that it remained clearly visible and unobstructed the entire time.[88]  The posting is then submitted with the RIR package of documentation. 

§ 5.7       Responding to Applicants

The employer should respond in good faith to all job applicants through its normal hiring channels. When there are “real” job openings, the employer will naturally be doing this in a regular effort to find qualified workers, and the only challenge is making sure to keep appropriate documentation.

When the recruitment is a structured pattern intended only to test the labor market for an RIR application and there is in fact no unfilled opening, the employer must still respond to applications in the normal manner.  At a minimum it must contact and interview potentially qualified candidates.  If it just ignores the resumes it will not be conducting the process in good faith.  An RIR request is not approvable just based taking the steps of publishing an ad or posting a job on the internet; all appropriate follow up has to be undertaken so that the employer can truthfully represent that the job was held open to qualified U.S. workers.  At the end, the employer must be able to present lawful, job-related reasons why all U.S. candidates were rejected such as for failure to meet the bona fide minimum qualifications in the job.[89]

The employer should maintain careful records of the responses from candidates, including all resumes, related correspondence from or to the applicant, notes of contact efforts and the results of interviews. 

§ 5.8       The Reduction in Recruitment Statement

Finally, the employer prepares a written Request for Reduction in Recruitment.  This is a report that describes all of the recruitment activities for the 6-month RIR period, describes the results of the recruitment and concludes that the results indicate that sufficient qualified U.S. workers are not available to meet the employer’s needs.  The statement should be signed by the Human Resources official responsible for recruitment and hiring.[90]   

Regulations require the RIR request statement to identify each recruitment source by name.[91]  The employer should provide a detailed particularized summary of all of the recruitment methods.  As appropriate, it will be helpful to include description for a recruitment source as to how it is “normal for the industry and occupation,” such as circulation information for a professional journal or web site. 

For recruitment results, the report must present at a minimum statistics of how many U.S. workers responded to the recruitment and how many interviews were conducted.[92]  Where there are multiple job openings, a fuller statistical breakdown should be presented of how many job openings there were at the beginning of the period, how many potentially qualified candidates were identified for follow-up, how many interviews were conducted, how many offers were extended, how many offers were accepted and thus how many positions remain open despite the efforts. 

Regulations require the employer to state the lawful job-related reasons for bnot hiring each U.S. worker interviewed.[93]  As a practical matter it is usually not necessary to identify each job applicant by name, but there should be a summary of the reasons why rejected candidates were deemed unqualified.  In an application that does not a multiple job openings or any opening other than the one filled by the alien it may become more important to present particular reasons for rejecting each candidate.

The statement must conclude with the employer’s attestation that during the six-month period prior to the application it attempted in good faith to recruit U.S. workers through sources normal to the industry and occupation, and was not able to attract sufficient qualified applicants to meets its job opening needs. 

The RIR request must attach all relevant documentary evidence of the recruitment activities.  Resumes and other material related to applicant responses does not have to be submitted in the RIR package but should be retained as backup to the statement of results in the event of questions later. 

§ 6       Step 5 - File Application With the SWA

§ 6.1       Signatures and Filing Format

A few final points are important for getting the application forms ETA 750 A and B ready to file and properly signed.  Failure to follow certain formatting and signature requirements or to include all required information can result in the application being returned. 

  • The Federal Employer Identification Number (FEIN) of the employer must be included as part of the “Name of Employer” in Part A, Item 4.[94] 
  • The forms must be submitted double-sided.  The current version was released as a two-sided form in 1979 and has not been updated since.  With technology available today, though, it is rare for an employer to go to DOL for the specially printed blank forms and fill them in with a typewriter.  Instead most offices use a computer forms generation program or download the form from DOL’s web site. The original double-sided format requirement still applies though.  Proper steps must be taken with a printer or copier when the application is finalized to generate it in the two-sided format for signing and filing.
  • There must be duplicate original signed forms.[95]  Ultimately, one of the originals is returned to the employer when the application is certified.[96] 
  • All signatures must be original signatures by hand.[97]  If the application has forms submitted with photocopied or faxed signatures it will be returned. 
  • Care must also be taken that the employer and beneficiary sign on all required lines. For the employer there are two separate signature lines on page 2 pf Part A.  For the beneficiary there are 2 separate lines on page 2 of Part B, and also on page 3 of Part B, if that page is needed to list all relevant experience.  With the requirement for duplicate originals, it means the employer must sign 4 times in all, and the beneficiary 4 or 8 times.  On each of the relevant pages the first signature is an attestation to the truthfulness of the statements and the other authorizes the agent or attorney’s representation. 
  • At its local discretion the SWA may require additional copies of forms or duplicate supporting documentation.  In Massachusetts, the DCS requests a photocopy of the signed application forms for their records in addition to the two originals.  The DCS does not require duplicate copies of other supporting documentation, but other state SWAs commonly do.  The practitioner should inquire into such local preferences when filing in a new state.
  • At the time of signing, the employer should be advised to carefully review the 8-point Employer Certifications in Item 23 of Part A.  These statements attest that the employer has an ability to pay the salary, that the employer will pay the prevailing wage for the job, and that the job opportunity has been and is still open to any qualified U.S. worker, among other points.  By its signature the employer makes these affirmative representations under penalties of perjury.[98]

§ 6.2       Notice of Appearance

Employers and aliens may be represented by an attorney or agent in the process.[99]  It is advisable for the representative to be a licensed attorney specializing in immigration law.  The attorney must file USCIS Form G-28, Notice of Entry of Appearance of Attorney, as part of the application package. [100] This form must be signed by the attorney and by the represented party.  All official notices or documents in the case will then be sent to the attorney. [101]

§ 6.3       Employer Supporting Statement

Next, the application package should contain a supporting letter from the employer, on its letterhead stationery.  The writer is typically the same official who signs the ETA 750 Part A. Depending on the circumstances there are several categories of information it may contain:

·         The letter should provide general background information describing the employer and its regular business activities, sufficient to establish the viability of the permanent job offer and the employer’s ability to pay the offered salary.

·         The letter should contain more particularized description of the employer’s business as it relates to the proposed job offer to the alien, and then describe the job duties and responsibilities and requirements in narrative format. 

·         At a minimum, discussion of the job requirements should establish that they are directly and reasonably related to the job duties and the employer’s regular business activity. Some cases may call for more detailed statement of “business necessity” justification for the job requirements as well.[102]  

·         Next, the letter should contain a narrative description of the beneficiary’s qualifications, sufficient to establish that he or she meets the job requirements.  If the alien is already working in the position offered, the letter should be clear how he or she met the requirement before starting to work  in the job.[103]  If the alien gained experience used to meet the job requirements from prior work in a different job with the employer, then a good description should be provided in the letter of how the prior job meets the “sufficiently dissimilar” requirement as developed in the administrative case law.[104]

·         In an RIR application the employer’s RIR request with all of the information outlined above may be stated in the supporting letter.[105]  Alternatively it may be provided in a separate statement.   That may be more efficient if one RIR statement is being prepared for use in support of multiple applications.   

§ 6.4       Other Supporting Documentation

Finally, certain supporting documents should be included with the application package:

·         Any Prevailing Wage Determination previously obtained from the SWA.  This will save time when the application goes into initial review at the SWA because the prevailing wage will have already been established.  If time has passed so that the wage data is no longer valid and must be recalculated at the SWA, having the determination will still be helpful for establishing the occupational code and experience level to use in the calculation. 

·         Basic financial or promotional documentation about the employer, in support of the background description of the employer’s business and to establish the viability of the permanent job offer and ability to pay the salary.  At its discretion the DOL can accept the employer’s written statements on this point, but it is better practice to get annual reports, financial statements or tax returns at this initial stage because that form of evidence will be required in the I-140 Immigrant Petition. 

·         Full copies of the beneficiary’s academic credentials (diploma and  transcript) with any necessary foreign credential evaluation, sufficient to document his or her meeting the academic requirement in the job.

·         Reference letters verifying prior relevant work experience, particularly prior experience needed to meet the experience requirements in the job.[106]  Prior work experience is also an area where DOL may at its discretion accept the written representations, from the Part B form and support letter, but it is preferable to obtain reference letters from the employers. 

·         Other credentials that may be relevant such as licenses, professional certificates or written articles by or about the alien may also be included.  There is a special requirement for professional credentials to be aware of for applications involving a physician or surgeon. The beneficiary must be a graduate of a school of medicine accredited by a body approved by the U.S. Secretary of Education, or have documentation of passing Parts I and II of the National Board of Medical Examiners Examination (NBMEE) or the Foreign Medical Graduate Examination in the Medical Sciences (FMGEMS) offered by the Educational Commission for Foreign Medical Graduates (ECFMG), or be a physician or surgeon “of international renown” with appropriate documentation.[107]

·         If a supporting document submitted with the application is not in English it must be accompanied by a certified translation.[108] 

·         In an RIR application there will be all of the documentation of pre-filing recruitment and the Notice of Job Opportunity posting as well.[109]

§ 7       Step 6 - SWA Processing

§ 7.1       Establishing The “Priority Date”

When the application package is complete and properly filed with the SWA, it will be stamped with the date of filing and be entered into the queue for processing.[110]  In most states, including Massachusetts, the SWA will also send a written receipt that confirms the filing date and provides the case number.  The date of filing becomes the “priority date” for the application, which has significance in several ways for processing of the application and for the alien’s eligibility for permanent residence and other immigration benefits.[111]

  • Going forward from filing, SWA processing takes place in strict priority date order, separated by RIR and regular cases.  With backlogs at some SWAs of 3 years or more, the priority date will roughly indicate when the case may be reached.[112]
  • The labor certification priority date determines eligibility for when an alien may complete the permanent residence process.  Employment based permanent residence categories have fixed annual quotas.[113]  When the quotas become oversubscribed, taking the final step of applying for an immigrant visa or adjustment of status is controlled in chronological order by priority date of the applicants.[114]  The State Department maintains a list and reports what dates have been reached for eligibility to complete the process in its monthly Visa Bulletin.[115] 
  • The priority date determines an alien’s eligibility for “7th year” H-1B extension benefits.  The normal 6 year limit on H-1B status in the U.S. does not apply “if 365 days or more have elapsed since the filing” of “any application for labor certification…in a case where certification is required or used by the alien to obtain status as [an employment based immigrant].[116] Provided the application was not denied, this is an eligibility that may stay with the alien if he or she moves to another employer.
  • The priority date may determine eligibility for other special immigration benefits or programs that may be passed by Congress from time to time, typically having a deadline by which an action such as filing a labor certification application must be taken. INA section 245(i) relief from “unlawful presence” is an example.  In that program, having a priority date of April 30, 2001 or before qualifies the alien for eligibility.[117]  The eligibility will carry over to allow the alien to seek immigrant status through a different employer or a family-based process provided the original qualifying labor certification application was non-frivolous and “meritorious in fact” when filed.[118]

§ 7.2       RIR Applications

                § 7.2.1    Initial Review

DOL policy encourages the SWA to have separate chronological tracks for processing of RIR and regular applications.  In most states RIR applications are reached more quickly than regular cases but the amount of disparity varies.   Regardless of the track it may be months or even years before an application is actively reviewed.[119]

In an RIR case, when that time comes the first step is for the SWA to assign an occupational code and skill level to the job offer and calculate the prevailing wage.[120] If the employer submitted a previously obtained wage determination that is still valid it will be honored for this purpose.   The SWA will check whether the wage offered on the Part A form complies with the prevailing wage.

Next, the SWA will review all other parts of the application for compliance with applicable regulation and policy.  It will pay particular attention to the stated job requirements and whether they comply with the “Standard Vocational Preparation” rule or have unduly restrictive elements not supported by business necessity, for example.  The SWA will also review the background of the alien for evidence of satisfying all job requirements before starting in the job.

Finally, the SWA will review the RIR request to determine if it complies with basic regulatory requirements for recruitment within a prescribed period and a written statement of results, and is otherwise complete and consistent with the DOL guidance memoranda.  It will also check for the proper form of Notice of Job Opportunity posting.

If the SWA determines that the application does not comply with the prevailing wage or some other legal requirement or is lacking documentation or information, or that the RIR request is incomplete, it will send a “Request for Modification” letter to the applicant providing an opportunity to rebut or cure the defect. If the request involves changing a term of the job offer on the Part A form, such as the salary, the SWA will return the original application forms with a request for the change to be made directly on them in pen and ink or by typewriter.  Such a change must then be initialed and dated by the authorized signer.  If there was a defect in the notice of job opportunity the Request will simply instruct the employer to re-post a corrected notice.  Other types of Request will seek additional recruitment documentation or evidence related to the alien’s credentials.  

The applicant will have a 45 day response period to respond to the SWA with the amended forms or requested documentation or information, or arguments to rebut the request.  Failure to respond within 45 days will result in the application being deactivated and returned to the applicant.[121]

                § 7.2.2    Transfer to DOL

When the SWA is satisfied that the application and RIR statement meet its requirements and are complete, it will forward the application file, including the prevailing wage finding and all supporting determination, to the regional office of DOL for final adjudication.  It may add appropriate information for DOL to consider such as local labor market data, or make a substantive recommendation for approval or for further investigation in a particular area.[122] 

 

§ 7.3       Regular Applications

                § 7.3.1    Initial Review

 

When a regular application is reached in the SWA queue, the initial review is the same as outlined above for RIR applications, except there is no RIR request to review.  The SWA will determine the prevailing wage, review the job offer for compliance with the regulatory requirements and see if all necessary supporting documentation is present.  For any deficiency that is noted a Request for Modification will be issued providing 45 days for the employer to respond. 

                § 7.3.2    Recruitment Instructions

 

Once issues with the job offer have been resolved, the application is ready for the prescribed structured recruitment activity is to test the labor market for availability of qualified U.S. workers. The SWA will issue a letter of instruction to the applicant to begin the process.  There are three components.

                                § 7.3.2.1                                Thirty day “Job Bank” Posting 

The SWA will use the information on the application form to prepare an “employment service job order,” more commonly known in Massachusetts as a “Job Bank” posting.[123]   This is a computer listing of job opportunities maintained by the state and available to the public.  The job order will stay posted on the system for 30 days. Applicants are instructed to submit resumes to the SWA.

                                § 7.3.2.2                                Print Advertisement

The employer must place a “blind format” print advertisement in a newspaper of general circulation or professional journal.[124]  The advertisement must describe the job opportunity “with particularity,” state fully the minimum job requirements, and include the full rate of pay, hours and other relevant working conditions.  Normally, the advertisement criteria are satisfied by using language from the pertinent items on the Part A form such as title, description, requirements, hours and salary. In some states the geographic location of the job must be specified in the ad as well. 

The ad will not identify the employer by name. Applicants should be directed to send resumes to the SWA at an address it will provide under reference of the case number.   The publication to use will depend on what is “appropriate to the occupation and most likely to bring responses from able, willing, qualified and available U.S. workers.”  In a newspaper, the ad must run for 3 consecutive days, and for professional jobs it must normally include the Sunday edition. In a journal one edition will suffice. Typically, the SWA will have local guidelines for whether a newspaper or journal is preferred, usually depending on the salary level or presence of an advanced degree requirement, and what is the appropriate publication for the geographic area of employment.[125]  Before proceeding with a print advertisement, it is helpful to confirm acceptability of the selected publication with the SWA on the phone.

                                § 7.3.2.3                                “Notice of Job Opportunity” Posting

Finally, in conjunction with the recruitment period the employer must provide notice to other employees in the workplace about the job opportunity and certain rights they have in the process.[126]  The notice is provided through the bargaining representative for employees in the occupational classification in the area of employment, or if there is no bargaining representative by posted notice in the facility or location of the employment.  The “Notice of Job Opportunity” must be posted for 10 consecutive business days, remaining clearly visible and unobstructed, in conspicuous places where the employer’s U.S. workers can readily read it.   Appropriate locations would include those where other employee postings such as wage and hour or occupational safety and health notices are placed.[127] 

The content of the Notice of Job Opportunity will be all of the information contained in the print advertisement, except that interested applicants are directed to report to the employer rather than the SWA.[128]  The notice must also contain a statement informing employees that (1) the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity, and (2) any person may provide documentary evidence bearing on the application to the local Employment Service Office (i.e. the SWA) and/or the regional Certifying Officer of the U.S. Department of Labor.[129] 

When the posting has appeared for the required 10 business days, the employer should attach a signed certification stating the dates and location of the posting and attesting that it remained clearly visible and unobstructed the entire time. 

                § 7.3.3    Responding to Applicants

The SWA will receive resumes generated through the Job Bank or print advertisement, and immediately forward them to the employer, through the attorney. The employer will directly receive resumes generated by the internal posting.

Responding to these outside applicants is a part of the process employers often dislike.  The employer does not wish to actually find a qualified applicant and hire him or her in the job opportunity, because to do so would be to admit the availability of a U.S. worker and lose the case.   However, the employer must attest under oath that the job has been held open in good faith to any qualified U.S. worker.  Therefore, it is mandatory that the employer properly consider all applications and interview potentially qualified candidates. 

The appropriate person to screen resumes and interview candidates is the hiring manager for the job or other official who normally interviews job applicants.[130]  The attorney may provide background legal advice about how to carry out the process, but may not participate in considering or interviewing U.S. workers. The alien may not participate either.[131]

The designated official must carefully review each resume immediately upon receipt, and initial and date the application to document the consideration. The first judgment to make is whether the resume shows a “reasonable possibility” of meeting the job requirements, and if so, follow-up contact with the candidate is required to investigate the credentials.[132] 

Only where the resume indicates clearly on its face that the candidate does not meet the qualifications can it be rejected without follow-up.  Where the resume is silent on a “major” job requirement such as a college degree, the employer may reasonably assume the requirement is not met, and reject without further contact.[133]  Rejection is also appropriate where the resume affirmatively indicates a deficiency that makes it impossible to meet a basic requirement, such as where the job requires 5 years post-graduate professional experience in a field but the resume shows graduation from college only 2 years prior. 

If the essential quantitative requirements such as degree and number of years of experience appear to be met, and questions exist only about more detailed qualitative or subsidiary requirements, it is the employer’s burden to contact the candidate for further investigation.[134]  Contact should be made as soon as possible, but in no event taking more than 14 days. The employer should use normal contact methods that would be used for any job applicants.  Initial contact by telephone or e-mail to invite the candidate for an interview will be acceptable.  If there is no response to telephone or e-mail messages, however, a certified letter should be sent to the mailing address on the resume.  It is important to keep written records of all contact, by maintaining a telephone log, saving e-mails and keeping copies of correspondence. 

The initial interview may be by telephone, if that is the employer’s normal practice or if travel or scheduling logistics would unreasonably delay holding an in-person interview.  If the candidate meets the employer’s normal standards to be invited for an in-person interview, then such an invitation should be extended. 

In the interview process the employer should focus its questions around whether the applicant possesses each of the specific elements of the education, training and experience required for the job as stated in Part A of the application and listed in the advertisement.  It is helpful to use a checklist that breaks the requirements into the individual components, in order of major items such as academic degree and gross number of years of experience to the more detailed items of subsidiary experience and specific skills or knowledge.  If, upon personal inquiry, it is determined that the applicant does not meet these job requirements, he or she can be rejected as unqualified for the job. 

An applicant may not be rejected for failing to possess a technical skill or area of specific experience in the occupational field that was not originally listed as a job requirement.  That would be going beyond the employer’s “actual minimum requirements” and would be particularly inappropriate if it is a skill or experience that the alien did not possess when first hired into the job.[135] 

The applicant can be rejected as unqualified where an item of deficiency was not listed as an express job requirement only where it demonstrates the person would be incapable of performing the job duties in some fundamental way.  An example would be a lack of English language proficiency in a job that required communication with U.S. coworkers or customers.  A basic capability to perform or reasonably learn all job duties is implied in the requirements, but this principle may not be used to add specific training, experience or knowledge requirements not listed on the labor certification form after the fact.

The employer is entitled to verify an applicant’s claimed experience or skill through reference checks or other good faith investigation in the same manner it would for a regular job applicant.  If such third party information indicates that the person does not have a required qualification then the person may be rejected.

An otherwise qualified applicant can be rejected if he or she is not willing to accept to accept the offered salary or the level of duties or some other express job condition such as a requirement to travel.  The test of the labor market is at the salary and working conditions stated on the labor certification application.  There is no obligation to negotiate with an applicant seeking higher pay or different responsibilities or working conditions. If the position involves “roving” assignment to various unanticipated client sites, it is permissible to ask if the applicant is willing to accept such relocation, provided such a condition was identified in the job listing.

A qualified applicant can also be rejected if he or she would not be available to start in the job for some amount of time beyond what the employer normally allows for new hires as a transitional period.  

Finally, there is no obligation to consider non-U.S. workers responding to the advertisement, because the process is by definition only to test the availability of U.S. workers.  U.S. workers are citizens, nationals, lawful permanent residents, refugees and asylees.[136]  It is permissible to ask applicants whether they hold such a status, as long as the inquiry is made of all applicants in a non-discriminatory manner. Alternatively, if an applicant volunteers that he or she would require temporary immigration sponsorship such as H-1B or TN in order to work it is reasonable to interpret that the person is not a U.S. worker and decline to consider the application. 

In all cases, the interviewer should contemporaneously record the results of the interview by completing the requirements checklist and adding detailed notes of any other pertinent information. 

                § 7.3.4    Recruitment Completion

At the end of this process the employer prepares a “recruitment completion” report.  This normally has a due date to the SWA of 75 days after issuance of the recruitment instructions, or 45 days after completion of the 30 day job order, depending on local procedures. The deadline can sometimes be extended where extra time is necessary to facilitate proper recruitment, such as where the ad must appear in a journal with too long a pre-publication cycle. The report consists of certain original documentation of the recruitment efforts and a written statement from the hiring official. 

For documentary evidence, the report must include (1) original tearsheets for each issue of the newspaper or journal in which the advertisement appeared, preferably the full page but showing at a minimum the advertisement and the masthead with publication name and date, (2) the Notice of Job Opportunity posting with attached certification, and (3) copies of all resumes or job applications, initialed and dated by the hiring official. 

The written statement must (1) identify each recruitment source by name, (2) state the number of U.S. workers responding to the recruitment, (3) identify each applicant by name and the job title of the person interviewing the applicant, and (4) “[e]xplain, with specificity, the lawful, job-related reasons for not hiring each U.S. worker interviewed.”[137]   

“Lawful job-related reasons” for rejecting a U.S. worker must demonstrate that the applicant was not able, willing, qualified or available to work in the job opportunity as advertised.  If the employer contends the applicant was not qualified, it must identify which particular stated requirements for the job are not met. It is good practice to follow a hierarchy of identifying the most objective, fundamental deficiencies first, such as lack of a basic job requirement like the correct degree or gross number of years experience, before relying on more specialized or technical requirements.  It is also preferable to rely on lack of a particular qualification the applicant has admitted in the interview before using third party information such as a poor reference.

If the employer contends the applicant was not otherwise able, willing or available, the basis for the contention must be specifically described, such as being unwilling to accept the salary or a working condition or being unavailable to start due to commitments with a prior employer.

All relevant contact with each applicant should be described, such as telephone, e-mail, correspondence or personal interview.  A timely, reasonable, detailed and well-articulated synopsis of the recruitment efforts will make the best impression. 

At the end of the report, the employer should conclude that despite a good faith test of the U.S. labor market, no qualified and willing U.S. applicant was available for the job.

At this stage and throughout the rest of the process at DOL, a third party may also submit information bearing on the application.  This may include “information on available workers, information on wages and working conditions, and information on the employer’s failure to meet terms and conditions with respect to employment of alien workers and co-workers.”[138] 

                § 7.3.5    Transfer to DOL

The SWA will review the recruitment completion report and if it is satisfied that the application is complete, it will forward the file, including the prevailing wage finding and all supporting determination, to DOL for final adjudication.  It may add appropriate information for DOL to consider such as local labor market data, or make a substantive recommendation for approval or for further investigation in a particular area.[139] 

§ 8       Step 7 - DOL Processing

Upon transmittal of the application to DOL, it will be assigned a new case number and await review by an analyst.  The queue for review goes by chronological order of the application’s arrival at DOL, not by the original priority date.  There are separate tracks for RIR and regular applications. 

§ 8.1       RIR Applications

The first item to be reviewed, if applicable, is the employer’s request for reduction in recruitment.[140]  The factors to be considered in making the determination on the RIR request will be:

  • Adequacy of the recruitment conducted by the applicant to test of the labor market, “e.g., newspaper advertising, job fairs, internet.” 
  • Documentation of normal recruitment practices in the industry and occupation furnished by the employer.
  • Availability of U.S. workers for the occupation involved in the application for which recruitment has been conducted through the SWA in the past, as shown by SWA job orders. 
  • The recommendation or comments from the SWA.
  • The DOL regional Certifying Officer’s “knowledge of the local labor market.”[141] 

This standard allows wide discretion by the regional office to apply its own view as to whether RIR is appropriate in a given occupation or for a given employer, based on local market unemployment statistics and other factors beyond the control of the employer. In practice, this means that if an application is in a field where there is a general perception of high unemployment, DOL may view the field as having “availability” of U.S. workers and deny the RIR request regardless of any special circumstances of the job at issue in the application or the employer’s attempts to recruit for it. 

Changes in the labor market occurring after the employer’s RIR test but before DOL’s review may impact the application.  DOL will have concern, for example, if it has reason to believe the employer has laid off any U.S. workers in the occupation during the 6 months prior to the case review. It may send a letter to the employer inquiring into specifics of the layoffs and requesting documentation of what consideration was given to such workers for the job and explanation of the reasons for any such workers being rejected.[142]  If DOL does not have information that the employer in the application laid off workers but believes there have been general layoffs in the industry or occupation in the area of employment, it may send a letter to the employer requesting that it publish one additional advertisement for the job, consistent with prior ads used in the RIR application, and submit a report of the results.  Alternatively the employer may request that the application be remanded for regular processing at the SWA.[143]

DOL may simply deny the RIR request outright, without providing opportunity for the supplemental advertisement, because the recruitment is not deemed acceptable or for other reasons related to availability of U.S. workers.  In that case the application is remanded to the SWA for “regular” processing.[144]  The SWA will, in turn, send a letter to the employer with a copy of the DOL’s decision denying RIR, which will specify the reason, offering the employer the option to proceed as a regular case with supervised recruitment or to withdraw the application.  If the employer elects to proceed under regular recruitment the application will be placed in the SWA’s queue for such cases in order by its original priority date.[145] 

If the RIR request is accepted, the application is reviewed for substantive compliance with all other relevant legal requirements, such as prevailing wage, absence of unduly restrictive requirements and notice to U.S. workers.[146]  If a decision is then made to deny for reasons such as inadequate wage or restrictive job requirements or other deficiencies, the regional office will issue a “Notice of Findings” (NOF) directly to the applicant.[147]  The NOF will cite the deficiencies and provide an opportunity to cure or rebut the deficiencies in the same procedure used for denial in regular applications, as described below.[148] 

§ 8.2       Regular Applications

In a regular application, the analyst will conduct a review for compliance with all substantive requirements including prevailing wage, absence of restrictive requirements or “business necessity” justification for any such requirements that are present, the alien’s proper qualification, notice of the job opportunity to U.S. workers, and all other issues that have been outlined above.[149] 

He or she will then review the results of the supervised recruitment to determine whether there is a U.S. worker who is “able, willing, qualified and available for and at the place of the job opportunity…”[150] The DOL will consider a U.S. worker able and qualified if the worker “by education, training, experience or combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed.”[151] 

This review will include looking at each resume that was submitted for the job and comparing it to the employer’s statement of lawful job-related reasons for rejecting the applicant, to determine if the employer conducted its test of the labor market in good faith.  It can be frustrating to employers, but the DOL will apply its own judgment as to whether a resume shows sufficient possibility of qualifying for a job so that the person should have been contacted for an interview.  For that reason, good practice is to err on the side of interviewing applicants to explore qualifications in depth. 

§ 8.3       The Notice of Findings

If the labor certification is not granted, the DOL will issue a “Notice of Findings.” This sets forth DOL’s intent to deny the application along with specific bases for such action.[152]  The “NOF” will provide an opportunity to submit documentary evidence or written argument within 35 days to cure the defects or rebut the findings.[153]   Upon request, one extension of an additional 35 days to respond can be granted. No further extensions will be granted after that.[154]

Some NOFs can be simple to answer.  It is common, for example, that DOL will note a defect in the 10-day Notice of Job Opportunity posting and simply direct the employer to re-post a corrected notice for 10 days. Other NOFs are more complicated. Particular difficult situations will arise where the employer did not contact particular candidates in a “regular” recruitment process and the analyst notes their resumes as indicating a possibility of qualification for the job.  The employer cannot just contact the candidates and conduct an interview then, with the NOF pending.  It must defend the basis for its earlier decision at the time it received the resumes that they did not warrant further contact. 

If the employer fails to respond to the NOF, it will automatically become a final decision denying the labor certification, and the employer will waive the right for further administrative review.[155] 

To respond to the NOF, the employer may submit written rebuttal arguments and documentary evidence by certified mail postmarked on or before the deadline date.[156]  The DOL will review the response and then take final action to either grant or deny the labor certification.[157]

§ 8.4       Approval or Denial

If it is determined that all legal requirements are met and the U.S. labor market was adequately tested, the application will be certified. A multi-colored stamp of the regional “Certifying Officer” of DOL is entered on the original application form, and it is sent with a covering “Final Determination” form to the employer’s attorney (or agent).  Copies of the Final Determination are sent to the employer and to the alien.[158]   The stamp indicates DOL’s certification that “there are not sufficient U.S. workers available and the employment of the alien will not adversely affect the wages and working conditions of workers in the U.S. similarly employed,” thus allowing the employment-based permanent residence process for the alien to go forward in compliance with INA § 212(a)(5).[159]

The approved labor certification is valid indefinitely, for the particular job opportunity in the area of intended employment stated that on the form.[160]  It is subject to invalidation only upon a finding of fraud or willful misrepresentation of a material fact in the application.[161] 

If the DOL denies the application after review of the NOF rebuttal, it will prepare and send a Final Determination that states the reasons for the denial and describes the procedure to request administrative review of the decision.[162]

If the employer does not request further review, the labor certification denial becomes final.  A new application by the same employer for the same job may not be filed until 6 months have passed from the date of the denial, except that, if the denial was solely because the wage or salary was below the prevailing wage, the employer may reapply immediately at the correct salary.[163]  

§ 8.5       Administrative Appeal

When the application is denied after the employer properly responded to a NOF, it may request review of the denial from the Board of Alien Labor Certification Appeals (BALCA).[164]  The request for review must be submitted in writing to the regional Certifying Officer who denied the application within 35 days of the determination, and specify the grounds for the request.[165]   Additional statements, legal briefs or other material may be submitted with the request for review, but may contain only legal argument and evidence that was within the record upon which the denial was based.[166]  The regional office will then assemble and index an Appeal File of the record and forward it to the BALCA office in Washington, D.C.[167] 

Once the review process has begun at BALCA, the parties will be afforded 21 days to submit a Statement of Position or a legal brief.[168]  BALCA will then review the denial of labor certification on the basis of the record upon which the denial was made, the request for review and any statements or position or legal briefs.  It can then (1) affirm the denial, (2) direct the Certifying Officer to grant the certification, (3) remand the application to the Certifying Officer for further consideration or fact finding and determination, or (4) direct a hearing to be held.[169]  Typically, BALCA action takes at least one to two years. 

Whether to pursue a BALCA appeal rather than simply wait six months and file a new application will depend on a careful evaluation of the legal issues presented.  There may be strategic reasons to file the request for review separate from the legal merits, however, related to the beneficiary’s temporary status.  The “7th year extension” of H-1B status is available when a labor certification for the alien was filed more then 365 days prior and there has not been a final decision denying the labor certification application.  The DOL decision to deny is not considered final as long as there is a request for review pending with BALCA.  Thus, filing the BALCA appeal may be useful, or in some circumstances necessary, as a way to maintain a beneficiary’s H-1B status. 

§ 9        Process Time and Status Checking

§ 9.1       Anticipate the Process Time

The overall processing time for permanent alien labor certification applications is maddening. It varies depending on the state and DOL region and whether the case is “regular” or Reduction in Recruitment. In many locations it is easily a two- to three-year process.  Large states such as New York, Texas and California have the longest backlogs. In many locations, the SWA is still working a backlog of labor certification applications filed immediately prior to the April 30, 2001 deadline to qualify an alien beneficiary for benefits of INA § 245(i) relief from unlawful presence. [170]

The fastest jurisdictions are typically small states with a low volume of case filings such as Maine and Vermont.  In such locations the process still takes up to six months, accounting for review at both the SWA and DOL level.    Because of the process time differential, some employers “forum shop” by asserting a job location in a small state with a faster process time in order to file the application there. Officials in these states are sensitive to the tactic and will seek proof that the in-state job location is actual rather than speculative. 

The DOL posts current processing information in chart format on its “Foreign Labor Homepage” web site.[171]  There are two sets of charts.  The first shows for each DOL region the age of applications currently being processed by date of receipt from the SWA. The second shows for each SWA the age of applications being processed by initial receipt date.   Both DOL and the SWAs process regular and RIR applications on separate tracks, so there are separate dates on the process time charts.  To estimate total processing time, the reported SWA time for the relevant location must be added serially with the reported DOL time, reflecting the two-step process.

§ 9.2       Case Status Inquiries

To check the status in an individual case, unfortunately there is no automated, national-level telephone or on-line inquiry system based on the receipt number given at initial filing, like there is for petitions and applications filed at USCIS.  In the SWA stage of the process this is because each of the 50 SWAs issues receipts in its own format and will have its own procedures for status inquiries.  Many have personnel who will answer bona fide questions on the phone from attorneys or employers, but do not like to entertain status-request calls from aliens. 

At the DOL level, there is an automated system for status checking that can be performed over the phone, on-line or by e-mail.  There are problems with the system that limit its usefulness however.  For an individual case, it requires the national DOL case number, which is not assigned until receipt of the application at the regional office and is not provided to the employer until there is a decision or piece of correspondence.  Alternatively, inquiry can be made by employer’s name, federal tax ID number or telephone number, depending on which automated system is used, and this will yield a list of all applications the employer has ever processed which includes job title, prevailing wage and salary.  Many employers do not want alien beneficiaries or other employees accessing this data, although it is public record.[172] 

§ 10    Post-filing Changes

Because of lengthy processing times for labor certification applications, it frequently arises that circumstances change with the employer, job or beneficiary.  Certain types of amendment or substitutions can be made on the application during the process or after approval in filing the I-140 Immigrant Petition.  

§ 10.1     Successor Employer

If there is change in name of the employer that occurs while the application is pending resulting from a merger, acquisition, “spin-off” or other corporate reorganization, or from a simple name change, it should be reported to the SWA or DOL office where the file is in process.  A letter from the employer and supporting documentation should be submitted to establish that (1) the new named entity is the same as or a “successor-in-interest” to the original employer, and (2) the job described in the application remains materially the same.  Normally, the relevant office will return the Part A forms with instructions to enter the new applicant name and, if applicable, new address or FEIN directly on the forms.  The amendment should be initialed and dated by the appropriate company official. 

If such a change occurs after the application has been certified, DOL will not entertain the request for amendment.  The employer must submit documentation of the name change or corporate successorship to USCIS as part of the I-140 Immigrant Petition process. 

§ 10.2     Changes in the Job Offer

In limited circumstances it is possible to amend the job description or requirements in a pending application without loss of a priority date.  Normally this is only allowed at the SWA, and if in a “regular” application only before the job is placed into supervised recruitment.  Changes are purely at the discretion of the SWA, and each will have its own procedures.  Before undertaking any of these amendments the practitioner should contact the SWA for instructions.

Typically, the type of change that may be made is a minor rewording of the job title, description or requirements that does not alter the underlying occupational category or skill level factored into the prevailing wage analysis.  This may result from good faith change in the employer’s business circumstances which have created new or different day to day duties without changing a job’s basic occupational field and level of responsibility.  If the changes would result in the SWA finding a different occupational code or skill level then normally the employer will be instructed to file a new application.

Particular caution should be observed in seeking to change job requirements.  Alteration in the basic quantitative aspects such as the number of years of experience is usually not permissible (except, of course, for a reduction that has been ordered by the SWA because of a finding that the requirement violates “SVP” or some other labor certification guideline).[173]  Typically an allowed change is in the form of a “clarification” to the particular skills or knowledge required within the gross total of experience.  The employer will still need to demonstrate that the clarification was within its actual minimum requirements for the job and that the alien met the requirements before he or she was hired.[174] 

Being able to amend the position requirements on an application with the SWA has been a useful accommodation in one context.  In recent years, it was common practice to submit RIR applications with very skeletal job requirements on the application, in an attempt to follow DOL guidelines which discouraged stating any kind of “special” requirement.  However, due to perceived changes in availability of U.S. workers resulting from labor market conditions, DOL often denied the RIR request and remanded such applications to the SWA for “regular” recruitment.  Just following the face of the application, this left the employer having to advertise a job in the “regular” process and respond to applicants using requirements that were in fact lower than its actual minimum.  To address this concern, some SWAs, including the DCS in Massachusetts, have allowed clarifying amendments to be made to add detail before the job is advertised.  The request must be received before the SWA has reached the remanded application in its queue to start the recruitment process. 

Like the employer name change, amendments to the job title, description or requirements must be physically made on the forms and initialed by the employer.  If the SWA allows such changes it will return the forms for this purpose on request. 

Once the structured recruitment process at the SWA has commenced, or in an RIR case once the application has been transferred to DOL, normally it is not possible to make amendments to the job description or requirements.  Similarly, such changes cannot be made post-approval.  A certified application is only valid for the particular job opportunity for which certification was granted.[175]

§ 10.3     The Regular Promotion Dilemma

One job change scenario that often causes concern is a direct result of the years-long process times. After the case has been pending for some time, an alien may receive a regular promotion and raise in salary and end up working in a materially higher level job than what was stated on the original application.  If a new application has to be filed on the basis of this change, however, then another 2-3 years may go by before it is processed, and by then the alien may receive another promotion to still a higher level, perhaps management, position, and so on.

Taken this problem to its logical end, either the alien will never be able to complete the permanent residence process based on the employer’s job offer because he or she keeps getting promoted out of any job stated on a labor certification application, or the alien must remain in the lower level job for the duration of the process while similarly qualified U.S. workers get promoted past him or her. Either result creates a form of servitude that would be against public policy. 

The only satisfactory answer to this problem will be for DOL to eliminate its extreme backlogs in process time.  Barring that, a reasonable strategy is for the employer to insure that any change in the employee’s job that occurs while an application is pending that materially increases the level of responsibility or pay is a “straight-line” promotion up from the original position in the employer’s hierarchy, given in the ordinary course of progression from the original job, based on the same factors and progression schedule that would apply to a similarly employed U.S. worker.  The change should not be a “lateral” shift across occupational or organizational reporting lines.  It is then a reasonable although not risk-free strategy to go on and complete the permanent residence process based on the original job offer, under a theory that the original job offer remains a “lesser-included” form of the job which the alien actually holds by the end of the process, and if required to do so the employer would gladly still hire the alien in the original job.  

§ 10.4     Change in Location

Another change that may arise with the passage of time is a new address for the employer or a different job location. 

As long as any new job location remains within the same “area of employment” used to calculate the prevailing wage, the change will not be considered material.  It can simply be reported to the SWA or to DOL, depending where the case is in process, and amended on the form.  Area of employment refers to an area within “normal commuting distance” of the workplace or within the same Metropolitan Statistical Area.[176]

If the change results in a new “area of employment,” then it will be considered a material change and may negatively impact continued processing of the application.  If the new area of employment is still within the jurisdiction of the SWA where the case was filed (i.e. a different metropolitan area in the same state), and the application is still pending at the SWA and, in a regular case, has not been placed in supervised recruitment, then the change may be reported to the SWA and amended on the form.  At its discretion the SWA may then allow the case to proceed. 

If the new area of employment is in a new state, on the other hand, then the original SWA will not let the case proceed, because it no longer has jurisdiction.  In that circumstance a request may be made to “transfer” the application to the SWA in the new state.  The SWA holding the original file must agree to mail it to the new SWA.  There is no formal policy or procedure for such a transfer, but some SWAs will accept a pending file sent in this manner and put the application in queue its original priority date, as a discretionary accommodation for an employer who has moved into that state.

Once a labor certification is granted, it is only valid for the area of employment identified in the application.[177]  If there is a change in location beyond the area of employment it will no longer be valid to use in an I-140 Immigrant Petition filing for the alien.  If the I-140 has been filed and approved and an I-485 Application to Adjust Status has been filed and pending for more than 180 days the labor certification will be considered still valid under a special provision for “long delayed adjustment applicants,” however.[178]

§ 10.5     Substituting a New Beneficiary

The labor certification application process belongs to the employer, not to the beneficiary.  As such, if circumstances change and the employer no longer holds out the job offer to the alien, it may “substitute” a new beneficiary while the application is pending or after it has been approved. The employer must offer the new beneficiary the same job that is described in the application, and the substituted alien must have met all the stated minimum education, training and experience requirements prior to the original date of filing with the SWA. 

The first step is for the employer to have the alien complete and sign duplicate original ETA 750 Part B forms, which will replace the Part B forms executed by the original beneficiary.[179]  Supporting documentation of the alien’s academic and experience credentials should also be assembled in the same manner as it would be in any case.  Careful review should be undertaken that the credentials show the alien meeting the job requirements before the original priority date, which could be many months or years earlier.

If the application is still pending at the SWA, the employer should contact the SWA to determine its preferred procedure to effect the substitution.  In Massachusetts, the DCS allows the employer to ask for the forms to be returned in the same manner as requesting permission for other amendments. The employer then amends Part A to name the new beneficiary, combines it with the new Part B and supporting documentation, and sends the whole package back to DCS for continued processing. 

After the application has been certified by DOL, substitution is not made with DOL but in the I-140 Immigrant Petition being submitted to USCIS.  The I-140 will name the new beneficiary and include the new set of executed Part B forms attached to the certified Part A, along with supporting documentation of the credentials.  The Service Center will review the petition and supporting documentation to determine whether the alien met the minimum requirements set forth in the Part A as of the original filing date.  If so, the petition is approvable and the new beneficiary and may go on to complete the permanent residence process based on the employer’s earlier job offer.[180] 

The employer may substitute a new beneficiary even if it has already filed an I-140 Immigrant Petition for the prior beneficiary, so long as that alien has not yet immigrated or applied for adjustment of status.  In that case the original I-140 is withdrawn or revoked.[181] 

§ 11     Coming Soon, the PERM Program[182]

Practitioners should be aware of a major change in the labor certification process that is on the way. Since 1999, the DOL has engaged in planning for a “reengineering” of the Alien Labor Certification process, to be known as the “Program Electronic Review Management System” (the “PERM” Program).  The basic idea is to replace the current procedure, with its paper-based filing, detailed substantive review for every application and separate levels of procedures at the SWA and then DOL, with a wholly-redesigned system based on electronic filing, applicant attestation statements, subject to audit, about the job and its pre-filing recruitment activity, and submission direct to a centralized DOL automated processing facility.  In theory, processing time for an application could be cut to several weeks, after just two to three months of preliminary activity the employer undertakes on its own. 

The proposal was first outlined for the public in broad terms in a Federal Register notice in August 2000.[183]   In May 2002, DOL published a more detailed Proposed Rule and Request for Comments.[184]  

No Final Rule has been published, so the current system remains in place.  If and when PERM is implemented, it will bring major procedural and substantive changes to the labor certification process.  The procedural changes may be quite helpful, if they are actually implemented.  Many substantive changes in the proposal will be quite burdensome and restrictive, however.  Practitioners should become familiar with the proposal and be prepared to address the changes with clients if and when the PERM program is implemented.

The stated goals of PERM are to streamline the labor certification process for employers and the DOL, save resources, and improve the effectiveness of the Alien Labor Certification process. The basic elements of the program, and major differences from the current system, are as follows.

§ 11.1     Application Procedure Under PERM

Following are major elements of the procedure for filing and processing an application for labor certification under the PERM proposal:

  • The State Workforce Agency (SWA)’s role in the process is greatly reduced. The employer files only a Prevailing Wage Determination Request (PWDR) with the SWA. The SWA’s role will be limited to issuing the prevailing wage determination. A uniform national form will be developed for the prevailing wage process.
  • SWA supervised recruitment is eliminated. Instead, in all cases, the employer conducts an “adequate test of the labor market” on its own within six months in advance of filing the application. The labor market test must use sources “normal to the occupation and industry,” and there are certain mandatory and alternative recruitment steps, similar to the current RIR process. The employer must maintain documentation of the labor market test, including the lawful, job-related reasons for not hiring U.S. applicants.
  • Actual filing of the application is then made directly to the DOL, at a national processing center it will establish, using a system of advanced technology for automated filing and computer processing that DOL is developing.
  • Whether the DOL will charge an application fee is still undetermined.  The DOL has a fee component built into the proposed regulations, but it is dependent upon Congress passing authorizing legislation for the agency to collect fees for this service.
  • Other than containing the SWA prevailing wage determination and related job information, the application is attestation based. The employer does not submit supporting documentation that is typically now included with applications, but must prepare and retain the documentation in the event it is requested later.
  • Once the application is filed in a complete format, it is reviewed electronically by the automated system. The system will be programmed to identify certain “flags” indicating a problematic case requiring further review by an analyst in an audit. Possible “flag” criteria mentioned in early discussions by the DOL are general availability of U.S. workers in an occupation and the number of previous applications made by the employer. The system will also randomly select a certain number of non-problematic cases for audit, as a quality control measure.
  • If the application is not selected for audit, a computer-generated certification should be issued within 7 to 21 working days of the application date. In early discussions, the DOL estimated that approximately 75% to 80% of applications would be certified in this manner.
  • If the application is selected for audit, the employer is notified to submit supporting documentation to verify the statements and attestations made in the application. Upon timely receipt of the documentation, the DOL will distribute the case to a regional office for review by a case analyst. If the regional office is satisfied that the documentation is consistent with statements and attestations in the application, the Regional Certifying Officer will issue certification. If the audit documentation is incomplete or inconsistent with the application, a Notice of Denial will be issued.
  • If “serious questions” about the adequacy of the employer’s test of the labor market arise in the audit process, but the documentation is otherwise acceptable, the DOL regional office may order 30-day recruitment under its supervision, similar to the current process in non-RIR cases. After carrying out this process, the employer submits a recruitment completion report, containing the lawful job-related reasons for rejecting any U.S. applicants. If the regional office is satisfied with the report, certification will be issued.
  • It is important to note that the proposed rule allows for a labor certification application that was filed before the PERM Program took effect to be refiled under PERM and still retain its original priority date.  This refiling option is not a conversion, however, because it will involve an entirely new filing that complies with all of the PERM regulations.

At the end of this section is a flow chart that outlines the proposed procedure. 

§ 11.2     Substantive Changes to Eligibility for Labor Certification

The streamlined procedures and reduced processing time, which were largely outlined in the August 2000 Notice of Guidelines, are attractive elements of the PERM proposal. On the other hand, many detailed new or changed substantive rules which were contained in the May 2002 Proposed Rule are more burdensome and restrictive compared to the current system. Following is a summary:

  • The recruitment activities that must be undertaken prior to filing the application are quite specific and structured.  The DOL has created a list of occupations deemed “professional” along with the education and training required for each profession. If the position is “professional” and requires a Bachelor’s degree, the employer must place a job order with the SWA as well as place two advertisements in the Sunday edition of a newspaper of general circulation at prescribed intervals. If the position requires experience and an advanced degree, one journal advertisement must be placed in lieu of one of the Sunday advertisements. In addition, the employer must choose three additional pre-filing recruitment steps from a menu including job fairs, on-campus recruiting, headhunters and the like. If the position is “nonprofessional,” two Sunday advertisements plus a SWA job order are required.
  • The advertisements must list the name of the company, state the salary offered, and describe the job with specificity.
  • The internal posting must be done both electronically and manually, as well as via any employer communication method (i.e., newsletter, Intranet, e-mail, etc.) the employer typically uses for internal recruitment.
  • The employer must maintain a detailed recruitment report. The Certifying Officer of the DOL may request resumes in the event of an audit. Employers who do not respond to an audit request are presumed to have made a material misrepresentation.
  • The business necessity standard for requirements not “normal to the occupation” is removed. Any requirements other than number of months or years of experience in the occupation, and any experience requirement exceeding the SVP may not be included, unless the employer can show that it employed a U.S. worker in the same position with the same requirements within two years prior to filing the application.
  • “Combination occupations,” previously known as “combination of duties,” are not acceptable unless the employer can show that it employed a U.S. worker in the same combination occupation within two years prior to filing the application.
  • A U.S. applicant may be qualified for the position, even if he or she does not meet all of the requirements, if, by a combination of education, training, and experience, the U.S. applicant generally qualifies to perform the job “in the normally accepted manner.”
  • Alternative experience requirements are not permitted.
  • The ability to count experience gained by an employee with the same employer, even if in a different job, as a contractor, or with a predecessor company, successor in interest, parent, branch or subsidiary, wherever located is eliminated.
  • The employer must be prepared to provide the DOL with documentation in circumstances where the beneficiary may have “undue influence” over the position, including having been an incorporator or founder, or being involved in company management.
  • The 5% prevailing wage margin currently allowed for certain data sources, such as the Occupational Employment Statistics (OES) system, is eliminated.  The employer is required to pay 100% of the prevailing wage in all cases.


[1] See INA § 212(a)(5)(A), 8 U.S.C. § 1182(a)(5)(A); 20 C.F.R. § 656.1(a).

[2] See 8 C.F.R. §§ 204.5(k)(4), 204.5(l)(3).  The work-related permanent residence categories where a labor certification grant is not required include “aliens of extraordinary ability,” “outstanding researchers,” “multinational executives and managers,” the “national interest waiver” , and aliens of “exceptional ability” with “Schedule A” designation.  These are discussed in Chapter ___, infra. 

[3] 20 C.F.R. § 656.3.

[4] In Massachusetts, the relevant SWA is the Mass.  Division of Career Services, Alien Labor Certification Unit, 19 Staniford Street, Boston, MA  02114. The relevant DOL regional office is U.S. Dept of Labor Employment and Training Admin.,  J.F.K. Federal Building, Rm. E-350, Boston, MA 02203.

[5] An example of such a questionnaire is included as Exhibit #A.

[6] See http://workforcesecurity.doleta.gov/foreign/times.asp.  To use this chart correctly, the state and regional processing times must be combined serially, to reflect the fact that an application is processed at the state level first and then forwarded to the regional office of DOL.

[7] 20 C.F.R. § 656.21(f), (g).

[8] 20 C.F.R. § 656.21(i).

[9] See § 5.2 of this Chapter, infra, for discussion of the recruitment activities and documentation of such that are required, or recommended, in an RIR application. 

[10] See Chapter ___, infra.

[11] See INA § 214(g)(4), 8 U.S.C. § 1184(g)(4); 8 C.F.R. §§ 214.2(h)(13)(iii)(A), 214.2(h)(15)(ii)(B)(1); Chapter ___, supra.

[12] Pub.L. 106-313, Title I, §106(a), (b), October 17, 2000, 114 Stat. 1253, as amended Pub.L. 107-273, Div. C., Title I, § 11030A, Nov. 2, 2002, 116 Stat. 1836.  

[13] INA § 214(c)(D)(ii), 8 U.S.C. § 1184(c)(D)(ii).

[14] For a discussion of qualifications for H-1B change of status, see chapter ___, supra.

[15] 20 C.F.R. § 656.20(c)(1).

[16] 8 C.F.R. § 204.5(g)(2).

[17] 20 C.F.R. § 656.21(a).

 

[18] A copy of the form is reproduced as Exhibit #B. 

[19] The DOT can be viewed on-line at http://www.oalj.dol.gov/libdot.htm.

[20] The O*NET can be viewed at http://online.onetcenter.org/.

[21] 20 C.F.R. § 656.21(b)(2)(ii).

[22] ­See the next subsection regarding “normal” requirements.

[23] 20 C.F.R. § 656.21(b)(2).

[24] 20 C.F.R. § 656.21(b)(2)(i)(A).

[25] The OOH can be viewed on-line at http://www.bls.gov/oco/home.htm.

[26] 20 C.F.R. § 656.21(b)(2)(i)(B).

 

[27] 20 C.F.R. § 656.21(b)(2)(i)(C).

[28] 20 C.F.R. § 656.21(b)(2)(i).

[29] Matter of Information Industries, Inc., 1988-INA-82 (Board of Alien Labor Certification Appeals [herafter BALCA] Feb. 9, 1989) (en banc) 

[30] DOL-ETA General Administrative Letter No. 01-97, Change 1, “Measures of Increasing Efficiency in the Permanent Labor Certification Process” (May 11, 1999) (hereafter G.A.L. 01-97 Change 1), reproduced at Exhibit #C.

[31] Matter of Tel-Ko Electronics, Inc., 1988-INA-416 (BALCA July 30, 1990) (en banc).

[32] Matter of Lucky Horse Fashion, Inc., 1997-INA-182 (BALCA Aug. 22, 2000) (en banc).

[33] 20 C.F.R. § 656.21(b)(5).

[34] Id.

[35] Matter of Delitzer Corp. of Newton, 88-INA-482 (BALCA May 9, 1990) (en banc). 

[36] Matter of Deloitte & Touche, 90-INA-493 (BALCA Feb. 7, 1992).

[37] 20 C.F.R. § 656.21(b)(2)(iv).

[38] See 8 C.F.R. § 214.2(h)(4)(iii)(D).

[39] 20 C.F.R. § 656.20(c)(2).

[40] 20 C.F.R. § 656.40(a)(1).

[41] 40 U.S.C. §§ 276a et seq.

[42] 41 U.S.C. §§ 351 et seq.

[43] 20 C.F.R. § 656.40(a)(2)(ii).

[44] 20 C.F.R. § 656.40(a)(2)(i).

[45] Id.

[46] 20 C.F.R. § 656.40(b).

[47] 20 C.F.R. § 656.3. 

[48] See DOL-ETA General Administration Letter No. 02-98, “Prevailing Wage Policy for Nonagricultural Immigration Program,” (October 31, 1997) (hereafter “GAL 02-98”), attached as Exhibit #D.   

[49] http://www.flcdatacenter.com/owl.asp. 

[50] See § 4.1.1, supra.

[51] Alternatively, the SWA may skip the DOT analysis and directly assign an SOC, depending on the state of its transition to sole use of the O*NET. 

[52] G.A.L. 02-98, § II.H. 

[53] DOL recently released a helpful Question and Answer formatted memorandum to address certain issues in assigning Level I or Level II skill designations for prevailing wage determinations. The memorandum clarifies that not all management jobs are per se Level II for example, since “there must be entry level managers for there to be experienced managers.” Similarly, a job that involves work at a client or customer site does “not necessarily” justify a Level II designation because it is “possible for employers to provide close supervision to employees even if the employees are working offsite.” See Training and Employment Guidance Letter No. 5-02, “Clarification of Level I and Level II Skill Levels for the Purposes of Prevailing Wage Determinations” (Aug. 7, 2002), reproduced as Exhibit #E.

[54] See § 4.2.2.1, supra.

[55] G.A.L. No. 2-98 § II.A.

[56] 20 C.F.R. § 656.40(c). 

[57] The main OES source for all other employers is known as the “ALC” database. Further explanation is contained in a pair of DOL policy memoranda:  DOL-ETA General Administration Letter No. 2-99, “Availability and Use of Occupational Employment Statistics Survey Data for Alien Labor Certification Prevailing Wage Purposes” (Apr. 23, 1999) reproduced as Exhibit #F, and DOL-ETA General Administration Letter No. 1-00, “Availability and Use of Occupational Employment Statistics Survey Data for Alien Labor Certification Prevailing Wage Purposes“ (May 16, 2000), hereafter G.A.L. 01-100, reproduced as Exhibit #G.

[58] 20 U.S.C. § 1001(a).

[59] 20 C.F.R. § 656.40(c)(1)(i).   

[60] 20 C.F.R. § 656.40(c)(1)(ii).   

[61] 20 C.F.R. § 656.40(c)(1)(iii).

[62] Id.

[63] 20 C.F.R. § 656.40(c)(2).   See 26 U.S.C. §§ 501(c)(3), (c)(4), (c)(6).

[64] G.A.L. 02-98, § II.J; G.A.L. 01-00. 

[65] G.A.L. 02-98, § II.J. 

[66] G.A.L. 02-98, § II.J; restated in G.A.L. 01-00. 

[67] 20 C.F.R. § 656.21(a)(2), 656.3 [definitions of Employment, Employer]. 

[68] In re: Crawford & Sons, 2001-INA-121(BALCA Jan. 9, 2004) (en banc) (affirming In re: Vito Volpe Landscaping, 1991-INA-300 (BALCA Sept. 29, 1994) (en banc)).

[69] See § 3.4, supra.

[70] See INA §§ 203(b)(2), (b)(3), 8 U.S.C. §§ 1153(b)(2), (b)(3).

[71] 8 C.F.R. § 204.5(k)(2). 

[72] 8 C.F.R. § 204.5(k)(4)(i).

[73] INS Memorandum HQ 70/6.2, “Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants”, Michael D. Cronin,  Acting Associate Commissioner, Office of Programs & William R Yates, Deputy Executive Associate Commissioner, Office of Field Operations (March 20, 2000), reproduced as Exhibit #H. 

 

[74] See 20 C.F.R. §§ 656.21(f)-(g), § 7.3, infra.

[75] 20 C.F.R. § 656.21(i).

[76] 20 C.F.R. § 656.21(i)(1).

[77] DOL ETA General Administration Letter No. 01-97, “Measures for Increasing Efficiency in the Permanent Labor Certification Process” (October 1, 1996)  (hereafter “G.A.L. 01-97”), reproduced as Exhibit #I, as amended in G.A.L. No. 01-97 Change 1.

[78] DOL-ETA Memorandum for All Regional Certifying Officers, “Evaluating Reduction in Recruitment (RIR) in an Environment of Increased Layoffs,”  Dale M. Ziegler, Chief, Division of Foreign Labor Certification (March 20, 2002) (hereafter 3/20/2002 Ziegler Memo), Posted on AILA InfoNet at Doc. No. 02032232 (March 22, 2002),  reprinted courtesy of the American Immigration Lawyers Association attached as Exhibit #J; DOL-ETA Memorandum for All Regional Certifying Officers, “Clarification of Reduction in Recruitment (RIR) Policy in an Environment of Increased Layoffs,”  Dale M. Ziegler, Chief, Division of Foreign Labor Certification (May 20, 2002) (hereafter 5/20/2002 Ziegler Memo), reproduced as Exhibit #K. 

[79] 20 C.F.R. § 656.21(b)(1).

[80] See 20 C.F.R. §§ 656.21(b)(1)(i)(A), (b)(1)(ii), G.A.L. 01-97 pp. 5-6.

[81] See 20 C.F.R. § 656.21(b)(1)(ii).

[82] 3/20/2002 Ziegler Memo.

[83] See § 7.3.2.2, infra.

[84] 20 C.F.R. §§ 656.21(i)(1)(i), 656.20(g)(1), (g)(3), (g)(5).

[85] See § 7.3.2.3, infra.

[86] 20 C.F.R. §§ 656.20(g)(5), 656.21(g)(3)-(g)(8).

[87] 20 C.F.R. § 656.20(g)(3).

[88] 20 C.F.R. § 656.20(g)(1)(ii).

[89] 20 C.F.R. §§ 656.21(b)(1), (i)(1); See § 7.3.3, infra. 

[90] 20 C.F.R. §§ 656.21(b)(1), (i)(1).

[91] 20 C.F.R. §§ 656.21(b)(1)(i)(A), (b)(1)(i)(B). 

[92] 20 C.F.R. §§ 656.21(b)(1)(i)(C), (b)(1)(i)(D). 

[93] 20 C.F.R. § 656.21(b)(1)(i)(E).

[94] This requirement does not appear in the regulations and it is not stated on the form.  DOL and, in Massachusetts, DCS representatives have stated it is their policy to require the FEIN however, and they will return an application that does not include it. 

[95] 20 C.F.R. § 656.21(a).

[96] See § 8.4, infra.

[97] 20 C.F.R. § 656.21(a).

[98] 20 C.F.R. § 656.20(c).

[99] 20 C.F.R. § 656.20(b).

[100] 20 C.F.R. § 656.20(b)(2).

[101] Id.

[102] See § 4.2.2, supra. 

[103] See §§ 4.2.3, 4.7 supra. 

[104] See § 4.2.3, supra.

[105] See § 5.7 supra.

[106] See § 4.7 supra.

[107] 20 C.F.R. § 656.20(d).

[108] 20 C.F.R. § 656.20(e).

[109] See § 5.7 supra.

[110] 20 C.F.R. §§ 656.21(d), (i)(2).

[111] 20 C.F.R. § 656.30(b).

[112] Process time reports posted by DOL at http://workforcesecurity.doleta.gov/foreign/times.asp indicate the filing date of cases being reached for review at each SWA.

[113] INA § 203(b), 8 U.S.C. § 1153(b).

[114] INA § 203(e)(1), 8 U.S.C. § 1153(e)(1); INA § 245(a), 8 U.S.C. § 1255(a).

[115] INA § 203(e)(3), 8 U.S.C. § 1153(e)(3); The Visa Bulletin is published on-line at http://travel.state.gov/visa_bulletin.html.   See § 4.6 supra.

[116] Pub.L. 106-313, Title I, §106(a), October 17, 2000, 114 Stat. 1253, as amended Pub.L. 107-273, Div. C., Title I, § 11030A, Nov. 2, 2002, 116 Stat. 1836.   

[117] INA § 245(i)(1), 8 U.S.C. § 1255(i)(1).

[118] Id., 8 C.F.R. § 245.10(a).

[119] The public process time reports list separate tracks for for RIR and regular applications at each SWA. 

[120] 20 C.F.R. §§ 656.21(e), (i)(2).

[121] 20 C.F.R. §§ 656.21(h), (i)(2).

[122] 20 C.F.R. §§ 656.21(j)(2), (k).

[123] 20 C.F.R. § 656.21(f).

[124] 20 C.F.R. § 656.21(g).

[125] In the Boston metropolitan area, either the Boston Globe or the Boston Herald may be used when a newspaper is appropriate.

[126] 20 C.F.R. §§ 656.20(g)(1), (5).

[127] 20 C.F.R. § 656.20(g)(1).

[128] 20 C.F.R. §§ 656.20(g)(1), (5).

[129] 20 C.F.R. § 656.20(g)(3).

[130] 20 C.F.R. § 656.20(b)(3)(ii).

[131] 20 C.F.R. § 656.20(b)(3)(i).

[132] Gorchev & Gorchev Graphic Design, 1989-INA-118 (BALCA Nov. 29, 1990) (en banc), affirming Nancy, Ltd., 1988-INA-358 (BALCA Apr. 27, 1989) (en banc).

[133] Gorchev & Gorchev Graphic Design, 1989-INA-118 (BALCA Nov. 29, 1990) (en banc).

[134] Id.

[135] See §  4.2.3, supra.

[136] 20 C.F.R. § 656.3.

[137] 20 C.F.R. § 656.21(j)(1).

[138] 20 C.F.R. § 656.20(h)(1).

[139] 20 C.F.R. §§ 656.21(j)(2), (k).

[140] 20 C.F.R. § 656.21(i)(4).

[141] G.A.L. No. 01-97 p. 5-6; see 20 C.F.R. § 656.24(b)(2).

[142] 3/20/2002 Ziegler Memo.

[143] Id.

[144] 20 C.F.R. §§ 656.21(i)(4)-(5); G.A.L. 01-97, p.6.

[145] G.A.L. 01-97, p.6; 3/20/2002 Ziegler Memo.

[146] 20 C.F.R. § 656.21(i)(5).

[147] Id.

[148] 20 C.F.R. § 656.25(c).

[149] 20 C.F.R. § 656.24(b)(1).

[150] 20 C.F.R. § 656.24(b)(2).

[151] 20 C.F.R. § 656.24(b)(2)(ii).

[152] 20 C.F.R. §§ 656.25(c), 656.3. 

[153] 20 C.F.R. § 656.25(c)(3).

[154] G.A.L. 01-97. 

[155] 20 C.F.R. § 656.25(c)(3). 

[156] 20 C.F.R. §§ 656.25(d)-(e). 

[157] 20 C.F.R. § 656.25(f). 

[158] 20 C.F.R. §§ 656.25(a)-(b), 656.25(g), 656.28, 656.3.

[159] 8 U.S.C. § 1182(a)(5);  see 20 C.F.R. § 656.3.

[160] 20 C.F.R. §§ 656.30(a), (c).

[161] 20 C.F.R. § 656.30(d). 

[162] 20 C.F.R. § 656.25(g)(2). 

[163] 20 C.F.R. § 656.29(a). 

[164] 20 C.F.R. § 656.26(a).

[165] 20 C.F.R. § 656.26(b)(1).

[166] 20 C.F.R. § 656.26(b)(4).

[167] 20 C.F.R. § 656.26(c).

[168] 20 C.F.R. § 656.26(b).

[169] 20 C.F.R. § 656.27(c).

[170] INA § 245(i), 8 U.S.C. § 1255(i).  See Chapter __[infra or supra?]. 

[171] http://workforcesecurity.doleta.gov/foreign/times.asp. 

[172] The e-mail status inquiry may be made by addressing an e-mail to “lcstatus##@doleta.gov” where ## is the region number  (i.e. “lcstatus01@doleta.gov” for cases pending in the Boston regional office of DOL) and entering “Case [8 digit DOL case number] or “EIN [employer’s 9 digit tax ID number].  The on-line inquiry of “public disclosure information” is available at http://www.flcdatacenter.com/casesearchperm.asp.  The site is often not updated for weeks or months at a time, so it does not function as a useful real-time status inquiry like USCIS operates on its web site.  The automated telephone inquiry may be made by calling a number specific to each region.  For Region 1 (Boston) it is (617) 788-0171.

[173] See § 4.2 supra.

[174] See §§ 4.2.3, 4.7  supra.

[175] 20 C.F.R. § 656.30(b)(2). 

[176] 20 C.F.R. § 656.3; see § 4.3.3 supra.

[177] 20 C.F.R. § 656.30(b)(2). 

[178] INA  § 212(a)(5)(A)(iv), 8 U.S.C § 1182(a)(5)(A)(iv).

[179] See § 4.7 supra. 

[180] The procedure for Labor Certification substitution is set forth in a pair of agency memoranda, “Substitution of Labor Certification Beneficiaries,” INS Memorandum to all Regional Directors 27MM6E03 (March 7, 1996), Posted on AILA InfoNet at Doc. No. 96030790 (Mar. 7, 1996) [hereafter “INS Labor Certification Substitution Memorandum”] and “Labor Certification Procedures,” U.S. Department of Labor Field Memorandum No. 28-96, to All Regional Administrators from Barbara Ann Farmer (March 22, 1996), Posted on AILA InfoNet at Doc. No. 96032290 (Mar. 22, 1996).  Both are reprinted with permission of the American Immigration Lawyers Association at Exhibit #L.  The current version of labor certification regulation, as published in 1991, actually prohibits labor certification substitution. 20 C.F.R. § 656.30(b)(2). However, enforcement of this provision was enjoined on Administrative Procedures Act grounds in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), leading to the procedure outlined in the two memoranda. 

[181] INS Labor Certification Substitution Memorandum.

[182] The author wishes to acknowledge that this section is based on an article co-authored with Bennett R. Savitz, Savitz Law Offices, P.C.

[183] Notice of Guidelines, “Labor Certification Process for the Permanent Employment of Aliens in the United States”, U.S. Department of Labor Employment and Training Administration, 65 Fed. Reg. 166 at pp. 51777 - 51779 (August 25, 2000).

[184] Proposed Rule and Request for Comments, Labor Certification Process for the Permanent Employment of Aliens in the United States; Implementation of New System, U.S. Department of Labor Employment and Training Administration, 67 Fed. Reg. 87 at pp. 30466 – 30521(May 6, 2002).


About The Author

George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of proce-dures to obtain temporary or permanent authorization to employ foreign profes-sionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Repre-sentation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.


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


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