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The Labor Certification Process Complicated, But Don't Be Intimidated

by Ellen Freeman, Esq.

Even as we continue to wait for Congress to take on immigration reform and finally realign real life business needs with an antiquated legal system, employers should not give up on foreign workers. While the current business immigration framework is complex and constantly changing, prudent planning and careful execution on the part of employers can make the task of pursuing a labor certification less daunting.

What are some of the pitfalls and challenges of the labor certification process?

Know Your Market

The current labor certification system dates back to the early 1960s. According to the regulations authored by the Department of Labor (DOL), the agency in charge of labor certification, an employer must demonstrate that there are no "qualified, interested, able and willing" U.S. workers to carry out the job in question. By way of example, a company in the New York City area would have a difficult time today demonstrating a lack of qualified U.S. financial analysts and bankers. While the Pittsburgh market has not been hit hard in any specific industry, it would be prudent to verify the number of resumes or applications that the company receives for a particular position before embarking on a labor certification quest.

The labor certification process commences with the placement of actual advertisements for the position in both print and electronic media within the six-month period prior to filing the application. Depending on the type of the position and its requirements, the ads may have to be placed in a national newspaper or trade journal, which could be pricey. The employer then has to review all resumes received in response to the ads and interview seemingly qualified applicants. Reviewing market conditions and the probability of locating U.S. workers in the area of employment beforehand would shield the employer from wasting time and money.

Be Consistent In Developing Recruitment Strategy

Ongoing recruitment is a part of running and growing the business. The employer is typically in a better position than the DOL in knowing the local market, the employer's human resources needs and the ways to access the necessary talent. The labor certification recruitment campaign should not be tailored for one specific position and one specific application.

The employer should be consistent in its recruitment practices. If the employer would normally recruit through a particular Web portal, magazine, conference or job fair, these same sources should be utilized when recruiting in conjunction with a labor certification application. Consistency in recruitment efforts, just like the employer's proprietary way of doing business, is always respected by the DOL. While labor certification recruitment requires a minimum of two Sunday print ads, an outdated and unproductive unproductive recruitment source, the other sources of recruitment should be real, meaningful and consistent with the employer's standard current recruitment practices.

Mind Expenses and Avoid Waste

As of July 2007, the employer must bear all advertising and As of July 2007, the employer must bear all advertising and incidental expenses, as well as attorney fees, associated with the labor certification process. Unlike other immigration- related filings and expenses, no part of the labor certification process can be passed onto the foreign national employee. Where the employer has finally located a long sought after specialist who happens to be a foreign worker, there is no reason to waste the recruitment efforts. The employer should take advantage of existing data: resumes received, ads placed, time spent on recruitment, and use it for this employee's labor certification process. In doing so, the employer should be mindful of the constraints placed by the DOL on both timing and type of recruitment.

In filing a labor certification application, the employer's recruitment efforts must take place no farther than 180, and no sooner than 30 days, from the date of the application's submission to the DOL. Since the DOL's processing regulations mandate a placement of the ad for a period of 30 days with the applicable state work force agency followed by a 30-day wait period, there is a 60-day minimum wait before the application could be filed. If the employer of a newly-hired foreign national waits more than two to three months to begin the labor certification process, the company's recruitment efforts may become stale and would not be considered by the DOL. It is prudent, therefore, to utilize the existing recruitment efforts and just add the DOL's mandated additional steps rather than starting the entire process anew.

Develop Consistent Job Descriptions/Job Requirements

The DOL has many changes in store for us again and the PERM/labor certification process is getting a new look and a new computer administration portal. One of the DOL's proudest additions to the system is its new data mining capabilities. If one would describe the DOL's objective in administering the labor certification process, it is fraud detection and prevention. Data mining capabilities go to the heart of this goal. The new computer comparison tools will allow the DOL to track and compare applications filed by a particular employer, attorney and even by position. In practical terms, the new data mining capability will highlight cases filed by the same employer for the same position and check on the job requirements.

Although many companies have very specific job descriptions and detailed job requirements, some lack a defined structure. Where a company's job description structure is loose, foreign national employees and their immediate managers may exercise undue pressure in making their job requirements very unique and/or hard to satisfy by another professional. The DOL, however, would view such job requirements as "unduly restrictive." The company's representative responsible for the labor certification process must keep such rogue managers or foreign national employees in check.

The company's utmost priority is to be honest to the tribunal, the DOL and remain consistent in describing both job duties and job requirements. If a company employs 20 IT consultants who carry out the same job duties, their job requirements cannot vary based on one individual's demands. Even if there are only three employees in the same position, the employer would be well served by preparing a chart and making sure that all three meet the job requirements stated in a labor certification application prepared on behalf of one of them.

"This article was first published in the October 2008 issue of TEQ".

About The Author

Ellen Freeman, Esq. is an attorney in the Immigration Practice of Buchanan Ingersoll & Rooney PC. She focuses her practice on employment-based immigration such as temporary work visas and permanent residence, including PERM/labor certification applications, preference petitions and consular processing/adjustment of status.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.