< back
 
 
LABOR DEPARTMENT RELEASES MORE DETAILS ON PLANS TO SCRAP CURRENT LABOR CERTIFICATION PROCESS FOR GREEN CARD SEEKERS
For most individuals seeking to get permanent residency through means other than sponsorship from a family member, getting an employer to petition for a green card is the only feasible option. And for most of those people lucky enough to find a willing employer, the main option available is going through an onerous process called a labor certification. The labor certification is a process designed to ensure that immigrants do not take jobs away from Americans or otherwise make working conditions for American workers worse. Employers are required to advertise and use other recruiting tools to demonstrate that no minimally qualified American workers are immediately available to fill the position. 
The system has been in place for two decades and is the source of considerable frustration. The process is cumbersome and slow – waits of several years are not uncommon. The Labor Department admits that the program has been criticized as being “complicated, costly and time consuming.” The DOL blames the problems on cuts in federal funding for the program. 
The DOL is now getting ready to address the problems with a plan to dramatically simplify the process. Under the current system, State Employment and Security Agencies (SESAs) play a large role in overseeing the recruiting process and preparing the case for the regional DOL office.  Several layers of bureaucracy will basically be eliminated under the DOL plan: 
-         The SESAs will only be involved in the process of determining prevailing wages. 
-         The wage will be requested and received from the SESA before filing the case. 
-         A new standardized form for prevailing wages will be used by all SESAs. 
-         In most cases, the SESA will assign the prevailing wage rate and appropriate skill level for the job opportunity from the wage component of the Occupational Employment Statistics (OES) survey. 
-         The employer will also have the option of submitting an alternative source for the wage. The SESA is still charged with evaluating the alternate information to determine if it is in compliance with the DOL’s standards. 
-         The DOL may set up a system to appeal negative SESA determinations on alternate wage submissions. 
-         The employer will be required to conduct an adequate test of the labor market for qualified US applicants at prevailing wages and working conditions during the six month period preceding the filing of the application. 
-         The specific mandatory and voluntary recruitment steps that must be taken will be set out  later on by the DOL in regulations, but the agency anticipates that they will be consistent with current Reduction in Recruitment rules. 
-         The employer will be responsible for maintaining documentation of the recruiting efforts. 
-         After the recruitment is finished, the employer will submit the application directly to an ETA processing center. 
-         The labor certification application will probably be machine-readable or directly completed in a web-based environment to eliminate the time-consuming data entry by ETA processing centers. 
-         After the application is received, a computer will review it to look for certain “red flags” that may indicate that in-depth review or audit is warranted.  Also, a small percentage of cases will be pulled for random auditing. 
-         If an audit is not triggered, then the case will be immediately certified and returned to the employer. 
-         The employer may then submit the certified application to the INS along with an I-140 petition. 
-         If the application is flagged for an audit, the employer will be requested to provide documentation verifying the information in the petition. 
-         After the audit, the case will either be certified, denied, or set for supervised recruitment. The supervised recruitment process will probably look similar to a normal non-RIR labor certification application under the current system. 
We will closely monitor the development of this major new system. The next step will be the promulgation of proposed regulations, though the DOL is not saying when that will happen. 
 
< Back | Next >
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.