DEPARTMENT OF LABOR OFFICE OF INSPECTOR GENERAL ISSUES AUDIT CRITICIZING LABOR CERTIFICATION PROGRAM AND H-1B LABOR CONDITION APPLICATION PROCESS

The US Department of Labor Office of Inspector General has released an audit studying the labor certification process. The complete text of the audit will be available at the documents collection section of our web site within the next few days. The audit, conducted between September 1992 and October 1993, deeply criticized the program and stated that major changes are needed if the program's goal of protecting US workers is to be met.

The report made the following findings:

1. The required labor market test is not designed to survey the labor pool available at the time the alien actually adjusts to permanent resident status
2. Despite a costly, time-consuming recruitment process, the required labor market test did not result in the hiring of US workers over foreign labor
   • The number of US workers hired as a result of the labor market test was negligible
   • Employers consider the labor market test to be perfunctory rather than real
   • Employers create nonexistent jobs to help aliens obtain permanent resident status.
   • Employers' contacts with the aliens occur long before the labor market test
   • Employers specifically tailor advertised job requirements to aliens' qualifications
3. Virtually all aliens who eventually obtained permanent resident status were in the US at the time of application; three-quarters were already working for the petitioning employer.
4. Over one-third of the PLC aliens either never worked for the sponsoring employer after adjusting to permanent resident status or left employment within 1 year of adjusting status.

With respect to the Labor Condition Application process, the Inspector General held that "the Labor Condition Application program is being manipulated beyond its intent of providing employers the best and brightest in the international labor market while protecting the wage levels of US. Workers." Specifically, the report cited the following:

1. The LCA program is being stretched beyond its intent of providing employers with access to the best and brightest in specialty occupations to make the employers competitive in the global economy
2. There is no certainty that U.S. workers' wages are protected by the LCA program's requirement that employers pay aliens the higher of the prevailing wage or actual wage paid to their employees who are similarly employed
3. Not all H-1B aliens were treated as employees of the petitioning employers
   • Some aliens were paid as independent contractors
   • Postdoctoral candidates did research under educational institutions' research grant
4. Some aliens are themselves the petitioning employer, thereby filing petitions on their own behalf
5. Some employers hired H-1B aliens and then contracted them out to other employers

The Report recommended scrapping the current systems and replacing them with new systems that would better meet the goals of the Immigration and Nationality Act.

The Inspector General's report has already been criticized for inaccuracies, bias, and political motivations. Department of Labor Secretary Robert Reich has criticized the country's immigration policies on numerous occasions and many believe that the report reflects the Secretary's personal anti-immigration sentiments. Pro-immigration advocates also note that the approval rates for labor certification applications have plummeted in recent years and that most employers would not spend the large amounts of time and money necessary to undergo a labor certification unless there was a genuine need for an employee. Expect a detailed response to be released by the American Immigration Lawyers Association in the near future.