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Innovation Is Not Normal: DOL And The End Of Business Necessity
by Gary Endelman

Biography It has been a very long time since DOL published the operating regulations that govern the basic labor certification process. When, its critics wondered, would Labor bring these rules up to date with modern times? Now, our friends in Washington DC have tried to do just that by publishing proposed rules that entirely rewrite labor certification as we know it. Maybe, the old regs weren't so bad after all. What makes these proposed PERM rules all the more stunning is that they come from a Republican administration that understands and comes from the corporate sector. This just shows that, regardless of what happens on election day, there is a permanent government in Washington with its own sense of institutional mission that really runs things.

The fundamental reform is a good one, namely transforming labor certification into an attestation driven process; in time, employers can submit the attestation over the Internet much as they do now with the H-1B labor condition application. The materials that support recruitment need not be sent in but should be kept just in case DOL wants to conduct a post-approval audit. For most cases, an approval comes back in 21 days. Holy cow Batman! Have we died and gone to labor cert heaven?

Not exactly. Since almost all labor certifications are filed for jobs already filled by the alien beneficiary, DOL will consider such opportunities to be "encumbered" and this is one factor, perhaps a controlling one, that will prompt an audit. No longer will employers be able to advertise the jobs at 95% of prevailing wage, thus increasing the iron grip of the wildly inflationary DOL wage methodology that does not distinguish between different levels of experience. The Kafkaesque dilemna of not being able to use experience with the petitioning employer becomes more exquisite since no longer is there an exit through different or dissimilar jobs. Delitizer and its progreny are instantly consigned to the scrapheap of history. The very notion of "relevant experience" is no more so that the only acceptable experience now is experience gained with former employers in the exact job opportunity for which certification is now sought. When combined with the transition from the Dictionary of Occupational Titles to the O*NET, a shift that eliminates hundreds if not thousands of occupational categories, the disappearance of relevant experience will force employers to put forward only the most generic job descriptions, regardless of whether this fits the employer's special business needs.

What is most disturbing for the American economy is the outright elimination of business necessity as a way for employers to justify requirements that are different from, or greater than, what is "normal" for the job. No longer will Certifying Officers have to "evaluate the unique standards of an employer's business" since DOL admits it lacks the technical expertise to do so. What is DOL aiming at? Here is the target: "Since the position for which certification is sought is usually held by an alien worker who is the beneficiary of the application, job requirements tend to be manipulated to favor the selection of the alien." Cut down on the requirements, it seems, and you cut down on the employer's ability to skew the result to keep the alien incumbent.

DOL says it wants to help US workers and I believe it. They should. That is their mission. Having said that, one wonders if these proposed rules and the philosphy that is behind them is the best way to do that. Is it possible to help workers without helping the employers who hire them? In the real economy that lives outside of 20 CFR Section 656, does such a thing as a "job description" really exist? Do employers have comprehensive job descriptions in mind when they recruit? Do they know precisely what their employees will work on in the future? If there are such job descriptions, is it also true that they never change in any material way for years at a time? Such a static view of the economy, one that few if any advanced nations still embrace, where a command and control approach does not allow any deviation, even on grounds of "business necessity" cannot be reconciled with the way that America works in the 21st Century.

Most telling and most troubling is the very notion that there are "normal" requirements for any job today. Who is to be the High Priest of Normalcy? By what criteria is normalcy to be determined? Even if you could identify "normal" requirements, is there to be no variation depending on what does the employer does, what it can afford, what its strategy is, who its customers are, where the employer is located, what the economic conditions are, and a whole host of similar factors that affect any business decision? Most troubling is the underlying assumption that workers who satisfy certain bare bones requirements are all the same, fungible and interchangeable parts on an assembly line. Here is the real problem and the real reason why DOL's approach will stifle the American economy and make it less likely that employers can hire US workers. The notion that human talent and intellectual creativity can be standardized and quantified, reduced to rigidly objective criteria without any tolerance for individual creativity or imagination is simply flat wrong. So wrong that it would make American business less nimble, less able to respond to unexpected challenges or take advantage of sudden opportunities. Where were Intel, Oracle or Sun Microsystems 20 years ago? How likely is it that they would have become what they are today if government policies and business decisions considered only what was "normal" at the time and did not allow for new talents or different skill sets that were little noticed at the time but promised a better future that only innovation could deliver? Does DOL help American workers by not allowing small and medium size businesses that hire new workers and drive the economy to require knowledge of emerging technologies that have yet to become "normal" but are the key to the future? The question answers itself. Such a policy is a job killer and a guarantee of flat or no growth for years to come.

The Department of Labor does a disservice to the very American workers it seeks to protect by depriving their employers of the ability to compete in the world economy on which everyone depends. In the end, DOL will only succeed in driving honest employers out of the labor certification market, thereby turning control of the process over to labor certification body shops that specialize in navigating the twists and turns of DOL regulations.

New ideas and the economic growth they make possible are the most effective way to help US worker. By making the labor certification process the sworn enemy of innovation, DOL only ensures that, when change comes, as it must, Americans will not be prepared to respond. Our competitors abroad will and they will seek to occupy and hold the high ground in the global marketplace. Only by encouraging innovation, and coupling such encouragement with strict and tough enforcement that is consistently but fairly applied, can the DOL do what it wants to do. Our friends at the DOL - and they are that - should not be afraid of what tomorrow brings.

About The Author

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

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