New World for Labor Certification

By Rebecca P. Burdette

As we approach the 20-year anniversary of the bust that hit the oil and gas industry in 1986, a generation of workers never returned to technical, professional and field work, even though the bust is a distant memory. For many companies, the shortage has necessitated their turning to immigrant workers, which has not been a walk in the park. To put it bluntly, our legal immigration system has created significant obstacles for employers in the United States to identify and legally hire foreign workers.
The main two routes to U.S. per-manent residence (a green card) are through sponsorship by a family member or sponsorship by an employer. When foreign nationals are sponsored by an employer, they must usually go through a three step process. The first step involves filing a labor certification application with the United States Department of Labor (DOL) after a test of the job market to show U.S. workers are unavailable. The second step involves filing an immigrant petition with the U.S. Citizenship and Immigration Services (Immigration Service) to prove the employer can pay the wage and the worker is qualified for the position. The final step involves filing an application with the Immigration Service or Consul to show the foreign national is admissible to U.S. (has not committed certain crimes, does not have contagious diseases, etc.).1
The processing time for the first step of the process, labor certification of workers, has been a jaw-dropping three to five years. To shorten these processing times, recent regulatory changes are transforming the labor certification process for the permanent employment of foreign nationals in the United States.
As of March 28, 2005, a new process is available for American employers who need to employ foreign workers to obtain permanent labor certifications.2 A number of major changes will make the process more automated and take less time. For instance, the new Program Electronic Review Management (PERM) process allows electronic filing of the application, taking advantage of current technology.3 The stated goal of the new regulations is to reduce the processing time for permanent labor certification applications to 60 days.4

A New Infrastructure for Labor Certification
The DOL’s basic standard for labor certification will remain unchanged. For certification, the DOL must attest that there are not sufficient United States workers who are able, willing, qualified and available, and that employment of the alien will not adversely affect U.S. workers’ wages and working conditions.5 To document unavailability of U.S. workers, the United States Department of Labor requires the U.S. employer to conduct a good faith recruitment-process. For non-professional positions, the employer must open a state job order with the Workforce Commission for 30 days and place two Sunday newspaper advertisements. For professional positions, the employer must do all the recruitment required for non-professional positions and three of ten other recommended forms of recruitment, including, for example, advertisements on an employer’s web site, trade or professional journal ads, and radio and TV ads.
The State Workforce Agencies (SWAs) will continue to use their current forms to provide the prevailing wage request that will be a vital component of the new PERM process to establish that the alien employer will not undercut U.S. wages.
To prepare for the implementation of the new labor certification process, the DOL created a new online format for the H-2A temporary agricultural worker program.6 This is the prototype for the new labor certification program.
To implement the new program, the DOL established two new, central permanent processing centers (PERM centers), which are similar to the United States Citizenship and Immigration Services centers.
Of course, with a backlog of more than 315,000 pending cases nationwide and processing times of three to five years for many labor certification cases, the new streamlined process cannot be successful without serious commitment to catch up. Therefore, DOL also established two Backlog Reduction Centers with significant staffing commitments.
The Backlog Reduction Centers are devoted to the reduction of the current backlogs pending in the SWAs and Regional DOL Certifying Offices around the country. They are expected to complete the processing of all old cases within the next two years. Expect the oldest cases to be processed first.

PROCEDURAL CHANGES IN NEW REGULATIONS
A new form has been created for the PERM procedure. An Application for Permanent Labor Certification will be used for the online application process.7 Although the application can be submitted by mail, a mailed application will take much longer to process than when applying online.

RECRUITMENT CHANGES IN NEW REGULATIONS
The recruitment provisions in the new regulations are similar to the current Reduction in Recruitment (RIR) provisions, although more specific. Under the current system, vague procedures and mandates from the DOL have resulted in a confused and lengthy process that has been frustrating to U.S. employers, employees and the DOL.
The PERM regulations require a recruitment period of no less than 30 and no more than 180 days before filing the PERM application with the DOL processing center.8 Although this is similar to the current RIR procedure, the requirements are more specific, with separate requirements for professional and nonprofessional applications. 9

PREVAILING WAGE CHANGES IN REGULATIONS
Perhaps the most sweeping change under the PERM regulations concerns the prevailing wage (PW) requirement for the labor certification process. In the past, the employer was not required to obtain a PW request before submitting the labor certification to the SWA. Also, the State Workforce Agencies previously reviewed applications and made recommendations for changes to the employer. Now, since the actual PERM application is submitted directly to the DOL processing center, the SWA no longer will be part of the process except to process prevailing wage requests. The PERM regulations require the employer to obtain a PW determination using the current form used by each SWA.10
Until some experience is gained with the new PERM program, it is difficult to predict how quickly new cases will be processed. Also, since fraud is a major concern for the DOL, it is reasonable to expect that a large percentage of cases may be selected for audits. There is no set time frame for a DOL response once the audit materials are submitted for review.

PRACTICAL EFFECT
Since the program’s start in March, the DOL has been working through the kinks in the PERM process. As expected, the adjudication of cases has not met the 60 day processing time initially promised by DOL. While a few PERM cases are approved within 2–4 weeks, most are taking roughly four months for adjudication, without an audit request. Nonetheless, this is a significant improvement over the past practice.
Also, since March, severe backlogs in immigrant visas for those seeking permanent residence through employ-ment have developed. Because of high demand, there simply are not enough available visas.11 A worker with a Bachelor’s degree could now have to wait more than six years after approval of the labor certification for an available visa number.
Congress plans to debate immigration issues this Spring. Now may well be the time for comprehensive immigration reform.

Rebecca P. Burdette is a shareholder with Quan, Burdette & Perez P.C., (www.quanlaw.com), a professional legal corporation focusing in immigration law. She has been practicing exclusively in the area of Immigration and Nationality Law since 1981.

Endnotes
1. 8 U.S.C. Sect. 1255 2. 20 C.F.R. 656; 69 Fed. Register No. 247, Dec. 27, 2004. 3. 20 C.F.R. 656.17 4. Comments to PERM regulations, 69 Fed. Register No. 247, page 77328, Dec. 27, 2004 5. 20 C.F.R. 656.1(a) 6. The online H-2A application is available at www.h2a.doleta.gov 7. 69 Fed. Register No. 247, 77405 – 77412, Appendix B, Dec. 27, 2004. 8. 20 C.F.R. 656.17(e) 9. 20 C.F.R. 656.17(e) 10. 20 C.F.R. 656.40 11. Go to www.travel.state.gov to view current Visa Bulletin. Visa Bulletin processing dates are updated monthly.

Text is punctuated without italics.

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