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Goodbye to All That: The End of Labor Certification
by Gary Endelman

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

Biography When Congress enacted Section 106 of the American Competitiveness in the 21st Century Act, it doubtless did not intend to kill off labor certification, but that is precisely what happened. Long largely a symbolic shield for US workers, labor certification is no longer even that. This section of AC 21 allows any applicant for adjustment of status after 180 days to switch to another employer in the same or similar occupational classification without a new immigrant petition or labor certification.

Holy Cow, Batman! The alien can now look for a better job while seeking the green card without the new employer having to do anything. No labor certification. No need to demonstrate the unavailability of qualified, willing and able US workers. No showing of a capacity to pay the prevailing wage. Nada, zip, zero, zilch, the big donut. While it is theoretically possible that the INS will save labor certification from extinction by adjudicating adjustment of status cases in less than 180 days, as Congress clearly wants it to do, the chances for this actually happening are roughly on a par with the prospects for achieving world peace, ending sibling rivalry, finding a cure for the common cold and locating a really good parking space in Manhattan during the work day without depleting your children's college fund.

No matter how many advertisements the sponsoring employer places, regardless of how hard it is to find Americans for the job, the alien beneficiary simply waits and moves on down the road once his or her adjustment application has gathered a fine layer of dust at an INS regional service center that may never have even opened up the envelope. It still could be frontlogged for that long. Labor certification cannot possibly protect anyone or anything when, after a modest wait, the alien can shift to a higher paying job in a more attractive location where US applicants may be plentiful. Doesn't matter. There is simply no way to reconcile the meaning of AC21 with the spirit of labor certification. Labor certification assumes, in fact demands, a static view of the world where the job never changes while Section 106 moves at the warp speed of business where such change is the only constant.

Congress has decided that delays in agency action should no longer be tolerated. Labor certification is not a victimless crime. It is, in fact, a drag on the very US economy on which all of us depend. While the exact cost of all federal regulations can never be fully known, the Office of Management and Budget recently estimated their price tag to be roughly $788 billion in 2000 or 44% of all federal outlays. This equates to 7.9% of the US gross domestic product, pegged at $9.974 billion in 2000. Another way of looking at it is to realize that the median dual wage earner family's net income of $41,846 contained $7,410 in hidden regulatory costs. The more complex our welfare state becomes, the greater threat it is to our national endowment. Think of it like this. The maximum budget surplus under the rosiest projections is guesstimated at $796 billion in 2010. Sounds good until you realize that the regulatory costs of over $700 billion RIGHT NOW surpass it.

Congress has to assume responsibility for the soaring costs of labor certification compliance. At the very least, Congress should have to vote on all DOL regulations governing labor certification, or any aspect of employment-based immigration for that matter, before they can take effect. American taxpayers have an inherent right to resist what the Cato Institute rightly calls "regulation without representation" since such is, in truth, a hidden form of taxation immune from popular control or sanction.

Labor certification should be abolished not to help aliens, but to put in place a system of occupational displacement insurance for US workers that really would make a difference. Since aliens benefit from getting the right to live and right in the US on a permanent basis, they should pay for it. A modest deduction set by Congress, not to exceed $100, would go into a fund administered by the USDOL, which already works with the states to administer unemployment compensation insurance. The beneficiaries of such a fund would be US workers in the same or similar occupation who have lost their jobs for any reason as well as low-income Americans who have been hurt by undocumented immigrants and need money for retraining so that they can learn 21st century job skills. If the occupational displacement insurance system became overfunded, the fee would be refunded to the newly minted permanent resident.

For every thing there is a season, Scripture reminds us, and a time for every purpose. It is now long past time to turn the page on labor certification and move on.

About The Author

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

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