Proposed DOL Regulations Spell Major Changes for Labor Certification Process
May 17, 2002

Most foreign nationals seeking U.S. permanent residence, or a “green card”, typically acquire their status by way of a petition of a U.S. relative. The second most common avenue toward permanent resident status, however, is a job offer by a U.S. employer – and the rules governing the processing of employment based immigrant filings are about to change.

For most employment based immigration filings, U.S. Department of Labor (DOL) approval of a labor certification application is required. With its approval, the DOL is confirming that the employer has satisfactorily proven that a test of the U.S. labor market revealed that U.S. workers are unavailable to fill the position at issue. And usually, the test of the labor market took place by way of a recruitment effort (usually consisting of print advertisements in local papers) that was supervised and intensely scrutinized by local state employment agencies such as Illinois’ Department of Employment Security. And because the traditional labor certification process has historically been riddled with delays (3 + years processing times) and complications, a proposal to simplify and streamline the procedure is awaiting final implementation.

Essentially, the supervised recruitment period will be eliminated as will the involvement of the local state employment agency, leaving the employer to conduct its own unsupervised, good-faith labor market test during the 6 month period prior to submitting their filing directly with the U.S. Department of Labor. In most cases, employers will be required to back up their assertions regarding the unavailability of U.S. workers by maintaining evidence that during the 6 month period in question at least 2 print ads were placed in newspapers or magazines appropriate for the position. Employers will also be required to document that alternative means of recruiting such as job fairs, Internet, and/or employment agencies were also employed.

Employers will not be required to submit documentation regarding these recruitment efforts when submitting their labor certification request, only their basic assertions to the effect that U.S. workers are unavailable. Instead, they will be required to maintain a file containing details of their unsuccessful recruitment efforts, including copies of all ads, resumes and applications received, as well as applicant evaluation reports. Of course, this file will be subject to government audit in the event DOL may call into question the assertions set forth in the labor certification application.

Although this procedure has yet to be formally implemented, one unquestionably positive feature of the pending proposal is the promise of just a 21-day processing time, a timetable that certainly is an improvement from the 3 + years commonly faced by applicants. More details regarding this proposal will be featured in this column once implementation is finalized.

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