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A labor certification is a determination under federal labor law that a US citizen or permanent resident with the requisite skills is unavailable to fill an employer's open position, thereby permitting the employer to hire permanently a non-US worker instead, and thereby sponsor that person for permanent resident status. A labor certification is required in connection with two types of employment-based immigrant visa categories: (1) second preference (advanced degree professionals and persons of exceptional ability in the in the sciences, arts, and business); and (2) third preference (skilled workers, professionals holding a baccalaureate degree, and persons capable of performing unskilled labor not of a seasonal nature). Priority workers, religious workers, and employment creation (investor) immigrants are not subject to the labor certification process. Labor certification has historically been a lengthy, complex, and convoluted process. The employer must demonstrate that no US citizen or lawful permanent resident near the employer's workplace is sufficiently educated, trained, or experienced to perform the duties of a position the employer seeks to fill. The federal and state governments, performing a mandate to protect the American labor force, seek to ensure that the employer has properly characterized the title, functions, duties, required education, and pay scale of the job, their primary concern being to ensure that the employer is not crafting these factors so as to fit a particular foreign employee. Government also seeks to determine that the employer has taken adequate steps to adequately recruit from among the existing US workforce. Between the employer needing to fill position, the non-US worker seeking to obtain a green card, and federal and state governments facing political pressure to battle US unemployment, the tensions run high and litigation not infrequent. Efforts at reforming the labor certification process have achieved some success, but significant regulatory changes are on the horizon for mid-2004. As an alternative to the lengthy individual certification process, employers may use prior recruitment efforts to substantiate a labor certification through the "reduction in recruitment" ("RIR") process. RIR avoids the need for a state employment agency to conduct a recruitment itself, saving considerable time. Recognizing the negative impact on business caused by labor certification delays, the US Department of Labor has proposed new rules that would require employers to conduct recruitment prior to seeking certification, rely heavily upon employer attestations, and seek to introduce a high degree of automation into the process. Some commenters,however, have suggested that the proposed rules fail to provide sufficient flexibility for employers and do not reflect real world business practices.
US immigration law bars admission of foreign persons into the US for the purpose of engaging in skilled or unskilled labor unless the Department of Labor (DOL) concludes that:
Individual Recruitment Process In the traditional, individual certification procedure, the employer submits Form ETA 750A and 750B to a state employment agency identifying the employer and its business and describing: the job title; wage and hour information; job duties; minimum education, training, and experience requirements; any special requirements; whether the job is unionized; and any recruitment efforts made before filing. The employer must also certify that:
Simultaneous with the filing, the employer must also notify the labor union, if any, which represents the occupation. If none, the employer must post the fact of the filing at the proposed place of employment for ten days. On receipt, the state employment agency date stamps the application, establishing the prospective employee's priority date for visa processing. This date can prove important during periods where demand for employment based visas outstrips supply. It establishes a place in line once the certification has been approved and the individual is ready to enter the country. The state employment agency will review the job description and determine a prevailing wage for the employer's location based largely on surveys conducted by the Bureau of Labor Statistics. If the proposed salary is inconsistent with that determination (more than 5% below the survey wage), the employer must either increase the proposed salary, convince the state employment agency to accept a different survey, challenge the determination, or withdraw the application. The state employment agency will also assess the job duties against the employer's proposed requirements in order to gauge whether the employer has properly matched them. To a significant extent, state employment agencies refer to the Department of Labor's Dictionary of Occupational Titles (DOT), published in 1991. At the time, the DOT was an exhaustive effort to classify jobs on the basis of industry, function, educational requirements, and responsibility. It is now rather dated, particularly with respect to technology-related industries, which can mean a greater degree of back and forth with the state agency in defining a position and determining prevailing wage. It is often critical to keep the DOT classifications in mind when preparing a labor certification application since a perceived mismatch will invite a request from the state employment agency to clarify or modify the application. Labor Department regulations state that the employer demonstrate that the articulated requirements of the job not be unduly restrictive, i.e., that they are not written to include requirements unnecessary or unrelated to the job duties with the effect of reducing the size of the potential pool of applicants. In light of an unduly restrictive finding, the employer may, nonetheless attempt to demonstrate that the disputed requirements are compelled by "business necessity." This might be the case, for example, where an employer requires proficiency in a language other than English in light for sales or customer service personnel in a globally-oriented business. The employer would have to establish that the language requirement was justifiable given the employer's particular marketing requirements. Once employer and state employment agency have agreed upon the job wage, duties and requirements, the state employment agency conducts a recruitment ("job order") to gauge the availability of qualifying candidates. Central to the recruitment is an advertisement posted by the employer in a newspaper of general distribution for three consecutive days or, if in a professional or trade journal, for one entry in the next publication. The advertisement must:
Upon receiving the employer's report, the state employment agency forwards it with any comments to the US Department of Labor, where a certifying officer reviews the state employment agency's determinations regarding prevailing wage and job category, as well as the employer's recruitment report. The certifying officer will then either grant the application or notify the employer, in a Notice of Findings (NOF), of his intention to deny the application or the need to conduct additional recruitment. The employer has an opportunity to rebut the NOF, and the certifying officer may later recant. If not, or if no response is filed, the certifying officer will deny the petition. In case of a denial, the employer may either petition the certifying officer to reconsider or file an appeal with the Bureau of Alien Labor Certification Appeals ("BALCA"). BALCA has no time limit within which it must rule on the appeal. Its decisions are subject to review by a federal district court.
Reduction in Recruitment (RIR) The employer may be able to avoid the advertising, interviewing, and reporting requirements of the individual recruitment process – and thereby avoid potentially significant delay -- if it can demonstrate that, in the six months immediately prior to filing the petition, the employer made good faith efforts to recruit for the position at the prevailing wage and working conditions. Such a demonstration would include filing copies of the notice postings, advertisements, non-qualifying resumes, results of interviews, and other material that would have been gathered during a state employment agency recruitment. The employer files the RIR request with the state employment agency, which may review the file, but often simply forwards it to the Department of Labor certifying officer, who determines whether the recruitment efforts were sufficient. If sufficient, she may rule on the merits of the petition. If not, she may refer the file back to the employer with instructions to conduct additional recruitment.
Certain occupations are subject to different procedures whereby either the recruitment process is relaxed in acknowledgment of a high national need for practitioners of particular occupations, or the rules establish a higher bar for occupations deemed saturated. Occupations in which there is a presumption of no harm to American workers ("Schedule A" occupations) are not subject to recruitment or advertising requirements. Presently listed occupations include: (1) physical therapists; (2) professional nurses who have passed the Graduates of Foreign Nursing Schools (CGFNS) Examination or are licensed by a state; and (3) persons of exceptional ability in the sciences or arts, including exceptional ability college and university teachers who have taught in the prior year and are entering the US to continue practicing the same art of science. On the opposite end of the spectrum, Schedule B lists those occupations, predominantly unskilled, for which there are a presumptively sufficient population of available workers. An employer may seek waiver of the presumption by showing that it has had an unfilled job order on file with a state employment agency for thirty days or more.
In May 2002, the U.S. Department of Labor proposed sweeping revisions to the labor certification process which would significantly diminish the role of state employment agencies in the recruitment process, require employers to conduct recruitment prior to petitioning for a labor certification, and commit to completing DOL's processing within 21 days of receipt of an application. Prior to filing with DOL, employers would submit a request for a prevailing wage determination to a state employment agency describing the duties, requirements, and proposed wage for the position. Upon receipt, the employer would submit it and the application – without supporting documentation – directly to the Labor Department's Employment and Training Administration. In lieu of evidence of recruitment activities, the employer would attest that it had taken the recruiting measures. Applications would be subject to random audits, which would require production of the documents supporting the recruitment effort. An application subject to audit would be reviewed by a DOL certifying officer who could grant deny, or request further recruitment efforts, up to and including the traditional individual recruitment process. Notably, the recruitment would be run not by the state employment agency, but by DOL. Concerns raised by bar and industry groups express concern with the PERM proposal to the extent that it:
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