U.S. Department of Labor Proposes “Reengineering” of Employment Based Immigration Process
September 1, 2000

No question about it, the most complex avenue toward lawful permanent residence in the U.S. is by way of the “sponsorship” of a current or future employer. In most cases, individuals seeking permanent residence, or “green card”, status by way of their employment must have their employer institute the “labor certification” process, wherein the goal is to have the U.S. Department of Labor certify that U.S. workers are unavailable for the position at issue. The process is usually complex and riddled with uncertainty since the employer must document their efforts to recruit U.S. workers for the position and elaborate on how each individual U.S. applicant lacks the necessary skills or experience to fill the position. In other words, the employer, in order to succeed on behalf of their foreign employee, must fail in their recruiting efforts.

The new system proposed by the U.S. Department of Labor does not stray off too far from the underlying policies guiding the current system, but instead offers a more streamlined process. In its current state, the initial stage of the labor certification process can take as long as 1 to 2 years, where, following the initial filing, the employer is finally given the go-ahead to place an ad in the appropriate publication and start testing the labor market for a thirty day period under government supervision. Following the submission of the employer’s recruitment report, the U.S. Department of Labor can take anywhere from 6 months to 2 years to issue a decision.

Under the new system proposed, the employer will not commence their filing until their own unsupervised recruitment efforts have already been completed. That is, the employer will be expected to document that 6 months of typical, unsupervised recruitment (for the industry and position) yielded no qualified candidates. Depending on the type of position and what is customary for the industry, an employer may have to place print ads in newspapers, magazines, and/or on the Internet. Additionally, the salary offered in the ad must be in conformity with Department of Labor prevailing wage guidelines. Once this documentation is submitted, the U.S. Department of Labor will issue a decision within 7 to 21 days.

The new system proposed is not unlike a now existing alternative to the basic labor certification process. Instead of waiting for up to 2 years to be given the go ahead to conduct a supervised 30 day recruiting effort, employers already have the option to engage in a pre-filing recruitment process, know as “Reduction in Recruitment “. With this alternative, employers currently have the option to conduct a several-month, unsupervised recruiting effort, with the hope again, of course, to document the unavailability of U.S. workers. With the current Reduction in Recruitment process now in place, however, the system lacks comprehensive rules and guidelines and a Department of Labor decision can take as long as 3 to 6 months.

In essence, the new system proposed by Department of Labor serves to formalize the current Reduction in Recruitment alternative and make it more efficient. In addition to traditional paper filings, Internet and facsimile filings will also be accepted under the new proposal and as stated, it is envisioned that the reviewing process will take less than a month.

As far as Department of Labor scrutiny is concerned, both random and discretionary audits of a particular employer’s filings will take place, sometimes leading to an employer being requested to conduct a traditional, supervised 30 day recruiting effort.

Of course, following “labor certification”, additional steps with the U.S. Immigration & Naturalization Service will be involved on the road toward permanent residence. These steps remain unchanged, with Step 2 consisting of an immigrant worker petition filed with INS wherein, among other things, the employer must document its financial ability to pay the wage offered and the employees own qualifications to carry out the duties at issue. Processing time for step 2 varies from 3 to 12 months.

Step 3 involves, among other requirements, the submission of the alien’s medical and birth records as well as a check of any criminal activity. Step 3, if instituted in the U.S.(known as Adjustment of Status) can take as long as 12 to 16 months. However, step 3 can also be instituted by way of consular processing wherein the applicant will make a trip to a U.S. Embassy or Consulate in their home country, and undergo immigrant visa processing there. The benefit for the applicant in choosing consular processing is that they may receive their green card 1 year earlier than an adjustment of status (in the U.S.) applicant. The downside for one undergoing consular processing, is of course, having to travel to their home country and being stuck out of the U.S. at the mercy of the Embassy’s or Consulate’s schedule and at the discretion of a U.S. consular officer.

Lastly, please note that several classes of employment based green card applicants need not institute labor certification to obtain U.S. permanent residence, including, registered nurses, physical therapists, religious workers, certain executives and managers of international corporations, and professionals, athletes and artists with “extraordinary” skills or whose talents will benefit the “national interest”. These applicants can completely bypass U.S. Department of Labor involvement and proceed directly to Step 2 above.

Any developments in the U.S. Department of Labor’s implementation of this important new program will be featured in this column.