Expediting the Labor Certification Process
November 2, 2001

Without a U.S. family member to commence an immigration process, many individuals in the U.S., regardless of their status, must resort to an employment-based immigration filing as a vehicle toward achieving U.S. permanent residence, or “green card” status. And aside from nurses, physical therapists, religious workers, multinational corporate executives or managers, most such applicants must institute a process called “labor certification”, where a sponsoring employer must document the unavailability of U.S. workers to perform the position the foreign worker seeks to fill. In most cases, the labor certification process, if successful, will yield a green card in 3 1/2 to 5 years. However, under new rules implemented by the U.S. Department of Labor, a procedure to shorten the wait considerably is now available.

The “conventional” labor certification process in the Chicago area starts with the filing of an Application for Alien Labor Certification with the Illinois Department of Employment Security’s (IDES) Alien Certification Unit. It usually takes IDES anywhere from 16 to 24 months to contact the sponsoring employer to commence the “advertising stage” of the process, where instructions are given to the employer to place an advertisement in a specified publication for a specified period of time. Although the ad invites interested parties to apply for the position, it is the hope of the sponsoring employer and foreign worker that no U.S. applicant will possess the necessary experience or qualifications to fill the position at issue.

After the employer files his report detailing the results of the recruitment stage with IDES, the file is then transferred to the U.S. Department of Labor, where processing will continue for a period ranging from 6 to 16 months.

If the filing is approved, the parties will proceed with the final 2 stages with the Immigration & Naturalization Service, the I-140 immigrant worker petition and Adjustment of Status filing. Processing time for the I-140 petition is approximately 3 to 6 months, and for the Adjustment of Status filing, 12 to 24 months.

Alternatively, it has always been the case that a sponsoring employer can institute a “Reduction in Recruitment” (“RIR) labor certification filing, where the employer conducts his own advertising over a 6 month period (at least 3 print ads in major publications and notice posted in the workplace) and submits the results of his efforts when initially submitting the Alien Labor Certification filing. If all of the paperwork is in order, the filing is immediately forwarded to the U.S. Department of Labor for the next stage of processing. The result: the parties need not wait for the go-ahead from IDES to commence the advertising stage as is the case in “conventional” labor certification filings and perhaps as many as 12 to 20 months waiting time can be avoided.

What about those cases where a conventional labor certification filing has already been submitted (for example, those filed prior to April 30, 2001 to secure 245(i) eligibility)and the parties are now waiting out the 16 to 24 month period to be informed by IDES that they can commence the supervised advertising stage? Is it too late to proceed with an RIR type of case?

Under rules recently implemented by the U.S. Department of Labor, most conventional cases can now be converted to RIR, and without the parties losing the benefit of their earlier filing date. Specifically, those wishing to avail themselves of this new rule, merely need to reference their earlier filing receipt when submitting their new RIR filing, and request that the earlier filing be converted to an RIR case. Again, at least 1 year of waiting will be subtracted from the process.

Given the complex web of rules and regulations governing the labor certification process, however, it is advisable to hire an attorney experienced in such cases to represent your interests. Otherwise, all of the waiting and expenses may lead to a dead end.