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Assistant Secretary for Employment and Training

Attention: Dale Ziglar (Chief, FLC Divison)

200 Constitution Avenue N.W., Room C-4318

Washington, DC  20210



















Federation for American Immigration Reform

1666 Connecticut Ave. N.W.  Suite 400

Washington, DC  20009

(202) 328-7004

July 5, 2002

Summary of Comments:

            The Federation for American Immigration Reform (FAIR) supports many of the changes to the Labor Certification Application (LCA) process proposed by ETA, which  appear to be well-intentioned mechanisms to exclude “encumbered” job opportunities from the LCA program.  FAIR is providing specific recommendations in this public comment to strengthen worker protections for many of the proposed new procedures. 

            However, consistent information provided by FAIR members and supporters at the state and local level indicates that the proposed audit and review provisions are simply inadequate to detect and control the current pervasive incidence of program fraud and abuse.  FAIR concludes that the sections of the proposed regulation concerning the detection and control of fraud and abuse are so inadequate as to require study, revision, and republication for public comment by the Department of Labor.  FAIR also concludes that the magnitude of  losses to U.S. workers is above the $100 million threshold for which a full cost-benefit analysis is required pursuant to Executive Order 12866.



The Federation for American Immigration Reform (FAIR) is a nonprofit organization organized under the laws of the District of Columbia.  FAIR has studied the laws of the United States governing the entry and departure of aliens and the economic, environmental, and social consequences of immigration since its founding in 1979.   FAIR is guided by a National Board of Advisors, many of whom have academic or professional expertise on the subject of immigration.  Present and past members of the FAIR Board of Advisors have included former U.S. Senators and Congressmen who participated in the formulation of U.S. immigration policy and former federal officials responsible for the implementation of such policies, including a former U.S. Attorney General and a former Commissioner of the Immigration and Naturalization Service.

FAIR has acted as a party or amicus, both on its own initiative and at the request of the government, in immigration-related proceedings in U.S. District and Appellate Courts, the United States Supreme Court, and before the Board of Immigration Appeals.  FAIR has been invited to testify on immigration issues before House and Senate committees on more than ninety occasions.  FAIR draws ETA’s attention to detailed public comments on Refiling of Applications under the LCA process, submitted in August 2000, which remain germane to the issues raised by this proposed rule.


Efficiency in processing alien labor certifications alone is not a permissible basis for DOL regulatory discretion where it conflicts with the plain meaning of 8 U.S.C. 1182(a)(5)(A).

The Supplementary Information to the proposed regulation states that unspecified criticisms that the existing process is “complicated, time consuming, and require[s] the expenditure of considerable resources by employers, SWAs and the Federal Government” form the DOL policy rationale for the proposed changes to 20 CFR 655 and 656.

Even assuming the accuracy of this undocumented assertion, ETA may not, as a matter of law, rely on either efficiency in processing nor the reduction of resource expenditure by public or private parties as legal justifications for the proposed regulatory changes, to the extent such changes disregard the explicit mandate in INA §212(a)(5)(A) that no alien may enter the United States to perform skilled or unskilled labor unless the Secretary of Labor first determines that sufficient U.S. workers are not available and that that the employment of such aliens will have no adverse effect on the wages and working conditions of similarly employed U.S. workers.

The purpose of labor certification under INA §212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)) is to exclude aliens competing for jobs American workers could fill and “protect the American labor market from an influx of both skilled and unskilled foreign labor.”  U.S.Code Cong. & Admin.News (1965), 3328, 3333; See Ruangswang v. INS, 591 F.2d at 46 n. 12; Mehta v. INS, 574 F.2d 701, 704 (2nd Cir. 1978); Silva v. Secretary of Labor, 518 F.2d 301, 310 (1st Cir. 1975); Wang v. INS, 602 F.2d 211, 213 (9th Cir. 1979.)  Alien labor certification is available to an employer only when the employer is without other recourse to obtain needed employee services.  Matter Of: Bob's Exxon, 89 INA 259, 89 (BALCA 1991). 

The statutory mandate to protect U.S. workers against immigrant labor is absolute, in contrast with the “very different” statutory treatment of non-immigrant temporary “H visa” programs, that are intended to balance the competing interests of assuring employers an adequate labor force on the one hand and protecting the jobs of citizens on the other.  Orengo-Caraballo v. Reich, 11 F.3d 186 (C.A. DC 1999). DOL may not formulate an administrative construction of a statute that is inconsistent with the statutory mandate or that frustrates Congress' purpose. International Longshoremen's And Warehousemen's Union v. Meese,  891 F.2d 1374, (9th Cir. 1989).    

In 1965 Congress amended  INA §212 to presumptively exclude intending immigrant workers, who now have primary responsibility to show unavailability of U.S. workers and no adverse effects. Pesikoff v. Secretary of Labor, 501 F.2d 757 (C.A. DC 1974), cert den 419 U.S. 1038.  Congress indicated in the plain words of the statute that, given the choice between the employment of an adequately “qualified” United States worker and the employment of an even-better-qualified alien worker, it preferred the former, and was willing to trade away some degree of increased productivity and economic efficiency in order to protect United States workers. Hall v. McLaughlin, 864 F.2d 868, (C.A.DC 1989.)

It is FAIR’s view that any regulation that “balances” employer interests against U.S. worker protections in processing LCAs for permanent employment-based immigrants violates its statutory mandate and invites judicial review. 


FAIR fully supports the following proposed changes to LCA job requirements that appear to be effective mechanisms to exclude “encumbered” job opportunities from the labor certification program:

1.      Business necessity.  FAIR strongly supports the elimination of the congenitally restrictive business necessity exception for job requirements that are non-standard at current 20 CFR 656.21(b)(2)(i).  The exception, which was entirely a bureaucratic invention, was always recognized as controversial.  Matter of Information Industries Inc, 88-INA-82 (BALCA 1989), documented the endless controversies created by this loophole, and notably included a call by Chief Administrative Judge Litt for the Department to rewrite the regulation.  ETA correctly recognizes that an irremediable conflict exists where the employer  asserts business necessity and the LCA beneficiary, as is typically the case, is currently an employee.


2.      Combination occupations.  FAIR supports the proposed standard at 20 CFR 656.17(g)(iv) for jobs requiring combined occupations, but recommends (1) that a minimum time period of at least twelve months be stated for the period in which a similarly-employed U.S. worker performed the “same” combination of duties within the two years before the LCA was filed; and (2) to require that only the highest paying occupation be used to classify the position, which will reduce the incentive to use combination job descriptions to encumber the position.


3.      Foreign languages.  FAIR strongly supports the proposed regulation, but recommends two additional conditions to the proposed foreign language standard at 20 CFR 656.17(g)(iii):  (1) The employer should first be required to attempt recruitment of foreign language specialists as temporary non-immigration workers, before applying for a permanent LCA.  In virtually every other country world-wide, foreign language specialists are recruited on a temporary basis until indigenous staff can be trained.  (2) Delete the exception at 20 CFR 656.17(g)(iii)(A) for employers who prepare a “detailed foreign marketing plan”, and specify instead that the employer have an existing marketing program requiring at least one FTE foreign language speaker.  The speculative nature of a “plan” makes verification and enforcement impossible, under both existing and proposed regulations.


4.      Actual minimum requirements.  (a) FAIR strongly supports proposed 20 CFR 656.17(h), which creates a bright-line rule that no work experience, training, or education provided by the employer may be credited to an alien beneficiary’s qualifying experience.  This rule is critical in maintaining the legal distinctions between temporary and permanent employment-based immigration.  Enforcement of that distinction is at the core of ETA’s statutory mandate in INA §212(a)(5)(A).  An employer practice of (i) sponsored entry in non-immigrant status, plus (ii) encumbering the permanent job opportunity through restrictive requirements constitutes a prima facie violation of the requirement of non-immigrant intent in INA §214(b). ETA is correct that similarity or dissimilarity of the prior position is not an element of the test mandated by the LCA process.  (b) FAIR supports the requirement at (h)(i) that no workers with less training or experience have been previously hired for the position as a good practical test for encumberment.


5.      Definition of employer.   (a) FAIR strongly supports the proposed new definition of employer at 20 CFR 656.17(h)(2).  It is entirely appropriate that U.S. workers be allowed to “pierce the corporate veil” in the contemporary workplace, where, even the largest and most stable entities can quickly change ownership, control, corporate structure, legal name, or headquarters location.  (b) FAIR recommends that experience gained as a subcontracted H-1B employee with the existing employer also be excluded from the beneficiary’s qualifying experience, since H-1B workers are by statute required to be already qualified to practice a specialty occupation in short supply as a condition of entry under INA §101(a)(15)(h)(2).  (c) FAIR supports ETA’s incorporation in the proposed rule of the legal standard from Matter of Haden Inc., which bars permanent labor certification where a position requires proprietary training or knowledge that only foreign employees of the employer possess.


6.      Alternative requirements.  FAIR strongly supports the elimination of alternative education or experience requirements.  No statutory or policy consideration exists to support alternative requirements, while there has been a history of employer manipulation of this loophole. As Matter of Animal Crackers Cafe, 99-INA-257  (BALCA 2000) has recently restated, any job requirements listed by an employer on Form 750A, including alternative requirements, must be read together as the employer's stated minimum requirements, making the alternative unavailable to the alien beneficiary.  ETA correctly notes in the Supplementary Information statement that in practice, alternative requirements have almost always been used by employers to disguise what are really unskilled jobs as skilled positions, in order to promote their alien relatives and cronies ahead of law-abiding applicants waiting their turn on oversubscribed visa preference waiting lists.


7.      Layoffs.    The proposed layoff notification rule at 656.17(j) does not meet the minimum statutory standard for worker protection.  A layoff in the area of intended employment in the same or a related occupation within six months is prima facie evidence that wages of U.S. workers would be adversely affected, since the wages of the former U.S. worker are presumptively transferred to the alien.  The proper minimum standard in this case is to require the employer to document that all of his laid-off U.S. workers who are actively seeking work are now employed (by any lawful entity) at a wage that is equal to or higher than the prevailing wage rate on the LCA.


8.      Undue Alien Influence Over Job Opportunity.   ETA’s concerns about bona fide job opportunities expressed in the Supplementary Information for 20 CFR 656.17(k) are legitimate.  However, FAIR finds the proposed regulatory protections far too indirect and weak to provide meaningful U.S. worker protection.  The proper minimum standard in this case is to include, on the new LCA application, additional attestations to disclosure whether the beneficiary is related to existing management or owners, has any corporate or proprietary interests in the employer, or is one of six or fewer employees.  Applications under these conditions are prima facie encumbered, and should be made be subject to automatic audit.


9.      Prefiling Recruitment and Advertising.   (a) FAIR strongly supports the requirement, at 20 CFR 656.17(e)(1), that the employer name be included in every required advertisement.  Employment advertising is undertaken for a variety of reasons other than direct recruitment for existing job opportunities, such as testing wage rates, identifying competitors’ key staff, documenting diversity programs, etc.  A job advertisement that communicates an ambivalent message does not constitute good faith recruitment.  Most U.S. workers recognize that advertisements naming the employer are much more likely to represent bona fide openings or vacancies, but are likely to consider anonymous ads as ambiguous in intent.  (b) FAIR recommends that the mandatory advertising for advanced degree professionals at proposed 656.17(d)(2) include the professional journal ad as an additional requirement to the two Sunday newspaper ads.  As a rule of consistency, more restrictive requirements should mandate more extensive recruitment.   (c) FAIR strongly supports the requirement at 20 CFR 656.17(d)(1)(i)(A) that a SESA job order be filed on all applications.


10.  Recruitment reports.   The proposed employer summary report of recruitment efforts at 20 CFR 656.17(f) does not provide minimum adequate protection to U.S. worker applicants, who cannot determine from the report if they were rejected for legitimate reasons.  (a) FAIR urges that the summary report be provided by certified mail to all applicants, with a notice describing the steps for filing an appeal to the Certifying Officer.  (b) FAIR strongly recommends that recruiting summary reports be subject to the same posting requirements as notices of LCA filings required by proposed 20 CFR 656.10(d)(2).   Only if other U.S. workers at the employers’ location are fully informed of the results of the recruitment process -- not merely its existence -- will minimum required protections be available. 


11.  Prevailing wage.   FAIR strongly supports the elimination of the five percent variance from prevailing wages in proposed regulation 20 CFR 656.40(a)(2) and 20 CFR 656.17(e)(5).  FAIR analysis supports the policy justification advanced by ETA that advances in wage survey availability have improved the reliability of the PWRD. Accordingly, any compensation that is less than prevailing wage would clearly constitute an adverse effect on wages of U.S. workers, and fail to meet the statutory standard for LCA approval.  Further, as wages generally trend upward annually as a result of increase in the cost of living and other factors, prevailing wages already understate current wages.


12.  Training.   FAIR strongly supports the policy in proposed regulations 20 CFR 656.17(f)(2) and 20 CFR 656.24(a)(2)(i) of designating a U.S. worker as qualified for the job opportunity if the necessary skills can be acquired during a reasonable period of on-the-job training.  FAIR recommends that a Specific Vocational Preparation (SVP) of one year or less, as defined at 20 CFR 656.3, and in addition to any education requirement, be presumptively considered as a reasonable period for training purposes, and thus make the LCA ineligible for approval.

The proposed system of audit and review will not meet the minimum standard for U.S. worker protection required by INA §212(a)(5)(A).


            It is widely acknowledged that LCAs under the proposed system will be “subject to less scrutiny…  The devotion of less resources by the DOL, in fact is the driving force behind PERM…; PERM is basically a way to match the program requirements to the current resource level.”  Fragomen & Bell, Labor Certification Handbook, 1-43, West (2002).  As discussed above, a significant rate of  application fraud is presumptive evidence that the statutory minimum level of U.S. worker protection required from the Department of Labor has not been provided. 

            The proposed regulations dcrease protection against fraud and verifiable abuse, despite evidence that program fraud is significant.   FAIR therefore concludes that unless revised draft regulations concerning fraud prevention, audit, and revocation procedures are resubmitted for public comment after further ETA study and review, the proposed regulations invite judicial challenge under the Administrative Procedures Act.


1.      Misrepresentation and fraud.  The proposed regulations do not provide a mechanism to deal with the actual level of fraudulent applications.  Informants from multiple jurisdictions have advised FAIR privately that the rate of fraud or material misrepresentation currently runs at 40 to 60 percent of all applications filed.     

(a) FAIR believes that it is critical, given credible allegations of pervasive fraud, that the ninety-day deadline in proposed 20 CFR 656.31 be eliminated.  This short drop-dead standard for filing of a criminal indictment or civil action, or for INS notification that an investigation is being conducted, clearly violates the minimum statutory standard for U.S. worker protection.  It impermissibly shifts the burden of proof from the employer/applicant to the U.S. worker representative.  It is arbitrary to expect investigations sufficient for criminal indictments or civil suits to be completed within ninety days.  It is equally arbitrary for DOL to administratively presume that INS is capable of completing a fraud investigation within ninety days, when the INS itself has never made such a representation.   (b) Similarly, FAIR urges the modification of proposed regulation 20 CFR 656.32 to eliminate the one-year time limit at 32(a) for revocation of a labor certification by DOL.


2.      Audit procedures.   FAIR is very concerned that no performance standards are set for the proposed automated audit program.  FAIR is skeptical of any ETA assertion that confidential internal analysis tools are effective monitoring tools.  Immigration attorneys and consultants will quickly be able to learn how to avoid audit triggers by checking a “safe” pattern of attestations, to game the computer-scanned review process.


3.      Role of SWAs.   FAIR has serious concerns about the elimination of the role of state employment security agencies from review of LCAs.  ETA, by its own admission, lacks the resources to investigate whether or not job opportunities are bona fide and clearly open to US workers.  Only a state agency has extensive experience with employers in its area through its experience with area business closings, labor market trends, unfilled job orders for non-LCA positions, and occupations that are truly experiencing labor shortages. 

            To meet minimum statutory standards for protection of U.S. workers, while not impeding the logistical improvements in the proposed regulations, FAIR recommends that: (a) the Certifying Officer be given discretion, by addition of enabling language to 20 CFR 656.20(c), to forward any LCA selected for audit, along with the required documentation file, to a State Workforce Agency (SWA) for confirmation and investigation of any or all statements made by the employer, without prejudicial effect upon Certifying Officer performance appraisals;  and  (b) any SWA be authorized, based on a reasonable-basis complaint from the public, or its own information and belief, to require an audit of any LCA with an intended area of employment that is within the SWA’s jurisdiction, and to issue a Notice of Findings for the use of the CO;  and (c) the posted notice of LCA recruitment required by 20 CFR 656.10(d)(2) should include the name, address and contact information for the cognizant SWA where a complaint may be filed.


4.      LCA Signatures.   ETA cannot meet its statutory mandate to deny approval for encumbered positions as long as there is no provision in the proposed application or processing system for a determination of whether the alien beneficiary is in fact qualified for the position.  Rejection of a U.S. worker in favor of an unqualified alien is a concern of ETA, not the INS.  The deletion of the job description requirement from the LCA, combined with the restriction of SWAs to prevailing wage determinations, plus the absence of any requirement that the alien and the employer attest under penalty of perjury to the veracity of the aliens’ qualifications, leave the evidentiary basis for any enforcement of fraud very weak indeed, and will help shield criminal violators from the sanctions of federal false statements sanctions. 

            The absence of a combined alien, employer, and immigration attorney signature block on the LCA application will encourage immigration attorneys and consultants to adopt an unlawful and unethical “see no evil” approach to LCA processing, in distasteful contrast to the higher standards of the bar in almost every other field of law.


5.      Schedule B occupations.   FAIR strongly opposes the elimination of Schedule B. Instead, only the availability of a waiver should be eliminated.  Schedule B occupations require little or no experience, and employees can be trained quickly to perform them. These jobs cannot be offered to immigrants without having an adverse impact on the wages and working conditions of similarly employed -- i.e. inexperienced and unskilled -- U.S. workers.  Making LCAs for unskilled workers a fast-processing priority does not make sense. All major source countries have multi-year waiting lists for immigrant visas due to demand far in excess of existing quotas. Providing LCAs for these positions will give employers an incentive to continue to pay low wages and provide adverse working conditions, and will damage the free market mechanism to provide needed entry-level opportunities for less-educated US workers.


The proposed regulations are an “economically significant regulatory action” subject to Executive Order  12866.


            The proposed regulation will have a direct effect on the U.S. economy, in particular to U.S. workers displaced by fraudulent and misrepresented applications.   FAIR has received indications of a 40 percent fraud and misrepresentation rate in permanent LCAs filed in at least one jurisdiction.  In 2001, approximately 20,000 permanent LCAs were approved.  If the fraud rate is projected nationwide, an estimated 8,000 job opportunities were unlawfully withheld from U.S. workers.  If the (conservatively) estimated wage of these workers is $15.00 per hour, the direct impact on the U.S. economy is to shift $240 million in wage and salaries from U.S. workers to permanent immigrants.  In addition, U.S. workers who otherwise would have filed these jobs may have incurred significant public outlays for unemployment benefits, public assistance, job retraining, et cetera. 

            Accordingly, FAIR concludes that DOL is required to conduct a full cost-benefit analysis of the proposed regulatory changes to determine if the regulatory scheme can be tailored to remove or significantly reduce the impermissible burden on society that fraud and abuse in employment-based immigration represents.



Respectfully Submitted,





Michael M. Hethmon, Esq.

Staff Counsel

Federation for American Immigration Reform

1666 Connecticut Ave. N.W.

Suite 400

Washington, DC  20009

(202) 328-7004 

[Editor's Note: Research notes deleted per author's request, 07/09/2002]