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Assistant Secretary for Employment and Training
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room C-4318
Washington, DC 20210

Att: Dale Ziegler, Chief
Division of Foreign Labor Certifications

Dear Mr. Ziegler:

I am submitting for your kind attention the following, brief comments to the proposed PERM regulations.

The Department of Labor has gradually moved away from the original statute and regulations for labor certification processing. As drafted, the regulations clearly would permit an Employer to file an application for the purpose of obtaining labor certification for a specific alien. The Employer's interest in the alien was permissive and institutionalized in the regulatory process. Indeed, the regulations would permit the Employer to obtain certification from the Secretary of Labor for an alien of its choice, provided that certain rules were followed. Initially, the Department of Labor used generalized data to determine if U.S. workers were available, but following litigation, the regulations evolved to their current form, i.e., a test of the job market with a well-defined recruitment procedure, to determine if qualified U.S. workers are qualified, available or interested in the job.

However, with the passage of time, the Department of Labor has changed the nature of the process. The notion that an Employer may have a subjective preference for the alien, subject to the regulatory process, has now been substituted by the belief that the Employer must document that it has no interest or preference in the alien, that it would be equally as satisfied with any U.S. worker referred for the job, and even that it has no interest at all in the alien. Agency decisions, including operating instructions such as General Administrative Letters, and decisions of the BALCA, have gradually whittled away at the Employer's right to select an alien for certification, and have characterized the Employer's preference as lack of good faith.

The proposed PERM regulations, when viewed in the historical perspective suggested above, are clearly an attempt to codify the agency policies and holdings that are most hostile to the Employer and to the process itself. As written, the PERM regulations would create new presumptions, change the burden of proof, and impose restrictions to the point that employers and aliens need not apply, as their applications would scarcely be viable.

Lest this comment be dismissed as one more thoroughly unsympathetic to the DOL's efforts to streamline labor certification processing, it should be stated that there are positive points in the proposed regulations. One is the establishment of a centralized review of decisions in Washington, although this could be better accomplished by the establishment of precedent decisions binding on all the Certifying Officers and their assistants, including personnel in the SWA's. Another positive feature is the fast turn-around proposed through a process similar to that used in the approval of Labor Condition Applications.

The American Immigration Lawyers Association and its members have submitted substantial comments. Although I participated in the preparation of only one section of the comments, regarding audits and findings of misrepresentation, I wish to heartily endorse the other comments made by AILA, with the exception of the proposal to charge a fee for processing of labor certification.

The labor certification is primarily adversarial, with the Certifying Officer and the Department of routinely imposing extra-regulatory presumptions, burdens, and levels of proof. In some cases, the agency has made it virtually impossible for an Employer to prevail, as in the three behemoth-like concepts, "totality of circumstances," "strict scrutiny," and "good faith," that smite down everything in their path. With such powerful tools available, the Certifying Officers are able to engage in "gotcha-ism" and other forms of gamesmanship that amount to a denial of Due Process.

It would therefore be inappropriate for the Employer to pay a processing fee to a hostile agency, whose interest is to represent U.S. workers zealously, and that applies hostile and subjective criteria in its interpretation of the statute.

Everyone supports a more speedy determination of labor certifications, however, the proposed PERM regulations go far beyond the goal of streamlining the labor certification process and would virtually eliminate the process itself.

Very truly yours,

Joel Stewart

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