The National Foundation for American Policy this week released a bluntly accurate critique of the recent anti-attorney, anti-employer shenanigans at the U.S. Department of Labor (DOL). The report, entitled "Certifiable: The Department of Labor's Approach to Labor Certification," chastises the agency for crafting the labor certification process without statutory authority ("DOL’s mandated advertising and recruitment scheme, which it wields like a club against employers, their attorneys and skilled immigrants, goes well beyond what the law prescribes for labor certification.")
Authored by Stuart Anderson, the NFAP report aptly describes the DOL's convoluted process of labor-market testing as one that "adds a significant dead weight cost to the operations of many of America’s most innovative companies, [and diverts] energy and resources that employers could better utilize on innovations that could create more jobs and wealth in the United States."
The NFAP urges Congress to minimize the DOL's role or "largely remove the [agency] from the [employment-based immigration] process," quoting with favor my recent article in The New York Law Journal, co-authored with Ted J. Chiappari, that describes the DOL's apparent view of lawyers in the labor-certification process as essentially nothing more than "potted plants."
In its conclusion, the report offers what apparently is the real reason for the DOL's process, more Potemkin village than the real world of recruitment:
"Given its actions, the Department of Labor has shown it has no interest in proposing or operating a simple system, since that would reduce the role and influence of Labor Department employees. It increasingly appears that the process contrived by the Department of Labor and the department’s battles against employers and their attorneys is not about protecting jobs for U.S. workers but jobs for employees at the U.S. Department of Labor [emphasis added]."
(CORRECTION: When drafting the NYLJ article I got carried away with the italicizer function of my word processor, and mistakenly italicized a few more words of text than the DOL had actually altered when it slipped in, without explanation, the phrase "attorney for the employer" to the existing regulatory ban in 20 CFR § 656.10(b)(2)(i) on involvement by the lawyer for the alien in considering or interviewing U.S. worker job applicants.]