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Scrap Labor Certification

by Mark E. Nerenberg, Esq.

Customs and Border Protection official history of United States immigration and naturalization tells us, "Congress's primary interest in immigration, the reason it had become a federal concern in the first place, was to protect American workers and wages." See

In 1940, in significant part because the Secretary of Labor refused to deport Australian labor leader Harry Bridges, the Immigration and Naturalization Service was removed from the Department of Labor. Though there continues to be vigorous debate about the relationship between immigrants and the economy, there plainly is one.

The current statute maintains the traditional protectionist stance against immigrant labor. But even disregarding economic arguments favoring opening our workforce, the existing labor regulatory certification system should be dismantled in its entirety.

The Immigration and Nationality Act states simply that a person coming to the United States to perform labor is inadmissible unless the Secretary of Labor has certified there are not sufficient workers to perform the labor and the person's employment will have no adverse effect upon similarly employed workers' wages and working conditions. Upon this narrow statutory directive, the Department of Labor has built a huge bureaucracy that, at its heart, is shameful and fraudulent.

The premise of the bogus regulatory system is that individual employers can and should make good faith efforts to identify American alternatives for the workers they would like to hire. A painfully arduous, time consuming and utterly false official process follows, in which American job-seekers are blindsided by so-called "recruitment" campaigns. These feature mandated (expensive) unmarked advertisements in the newspaper that promise openings that no reader will ever fill.

The employer, desirous of hiring the best candidate for the opening, is forced to participate in a government-sponsored charade in which the hapless American candidates who do respond to the recruitment campaign are one-by-one disqualified for the position. Skilled immigration attorneys counsel employers in ways of framing job requirements, phrasing questions and reviewing resumes and references that will result in the desired outcome.

A frustrated Labor Department sometimes lashes out at the attorneys, or the immigrants, or both, alleging a built-in bias on their parts that could affect the "good-faith recruitment" it wants to see from the employer. In fact, the Labor Department's own regulatory demand that asks the employer to behave as if it had not already identified a suitable candidate for a given position is what makes a good faith effort of the employer inconceivable.

Since the late 1970's the labor certification regulatory system has remained conceptually the same: It is up to the employer to prove that it really and truly cannot find a suitable American worker. The employer does this by obtaining and furnishing evidence from the labor market.

Prior to that time, however, the Secretary of Labor made the required certification without contracting the job out to the employer. The Department of Labor simply relied upon states' labor department statistics - which were updated every 90 days - about shortage occupations. The Department of Labor relied upon its own statistics about wage levels.

Thus existing, generally accepted statistics made it readily apparent if workers were available to perform particular labor. State labor departments referred available workers to employers. Where they could not, the Secretary of Labor issued the certification in a matter of weeks.

Compared to the current dishonest, convoluted system, the earlier system was much more faithful to the statute's basic directive. The Obama Administration should return to a similar system now, divorcing from the statute's labor certification requirement any concept of the employers' "good faith" recruitment and the entire, misguided superstructure of regulation that rests upon it.

About The Author

Mark E. Nerenberg, Esq. is attorney at law at Law Offices of Mark E Nerenberg PC. Mr. Nerenberg focuses on labor certification process. His first practiced immigration law was in 1978 in San Francisco with the San Francisco Neighborhood Legal Assistance Foundation. He then moved to New York City in 1982-1992 with Wormser, Kiely, Galef & Jacobs and with Law Offices of C. Steven Horn. He became a solo practitioner in 1995 and became a member of New York City Bar Association Immigration and Nationality Law Committee in 2006-2009. Mr. Nerenberg is a weekly columnist for India Monitor in mid-1990's.

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

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