Department of Labor Proposes Changes to Speed Up Green Card Processing

On May 6, 2002 the U.S. Department of Labor proposed sweeping new legislation that will speed up green card processing for employment based green cards. The first step to obtaining an employment based green card is to obtain a Labor Certification from the Department of Labor. This is a complex and time consuming task in which employers follow Department of Labor regulations and guidelines to show that there are no U.S. workers who are able, willing, and qualified for the position with the employer.

Processing times for Labor Certification presently exceeds 4 years. The Department of Labor created a fast-track process for certain occupations that required two or more years of experience to speed up the process. This fast track was called Reduction in Recruiting or “RIR”. At its best, RIR cases were receiving approvals within 4 months. However, due to the numerous 245(i) filings, RIR cases are now taking approximately 2 years.

The new proposed regulations would reduce all Labor Certification processing to approximately 21 days. Under the new proposal, there will no longer be a distinction between Reduction in Recruiting and traditional Labor Certification. The reduction in processing times will be accomplished through an automated filing system. Employers will now submit 2 forms that contain various attestations needed to certify a position that can be made by answering yes or no.

RIR’s advantage over traditional Labor Certification was that the employer could recruit through newspapers, Internet, etc. before filing a labor certification application. Under traditional Labor Certification, the application would have to be submitted to the Department of Labor and then wait until the Department of Labor was ready to supervise recruiting. Under the new system, employers would be required to keep their recruiting efforts on file and present them to the Department of Labor if audited. The new system will randomly pull cases for audit to ensure compliance with regulations. Certain types of cases will also be automatically flagged for auditing. Recruiting for both professional and nonprofessional positions will require 2 Sunday edition newspaper advertisements, 28 days apart, and an ad placed with the State Workforce Agency.

In addition to decreasing processing times, the new system also eliminates the “Schedule B” category of workers. Schedule B occupations were those that were determined to have U.S. workers able, willing, qualified and available to work. These occupations could not be labor certified without applying for a waiver. Examples include, care givers, nursing assistants, waiters, maids, housekeepers, attendants, laborers, and clerks. The new system would allow labor certification to be filed for these types of occupations.

There are some setbacks with the new system. For instance, employers will have to pay the prevailing wage to the alien. Current regulations allow employers to pay within 95% of the prevailing wage. This is of great importance since the Department of Labor’s wage surveys only have two levels for salaries-entry level, and everyone else. So for example, an employer wishing to hire an intermediate level bookkeeper would be expected to pay the same salary as a bookkeeper with 15 years of experience. Another setback is that job descriptions with foreign language requirements will be severely limited. Employers can now show that a foreign language is needed if most of its business is conducted in that language. For Example, a bookkeeper for an import export company may be required to read and write Chinese because all the bills and invoices she processes are in Chinese. Under the new system, an employer can no longer require Chinese language because bookkeepers in general do not need to know Chinese.

The Department of Labor will accept comments until July 5, 2002 on its proposed new system. The comments will be reviewed and one to two pilot centers will be set up to test the new system. The last pilot system tested by the Department of Labor was set up in San Francisco and Philadelphia. These centers already have the computer systems needed to read the new automated forms. If San Francisco is again chosen as a pilot center, Labor Certification applicants in California would be amongst the first in the nation to benefit from the 21 day processing. If the system works as well as anticipated, California applicants may want to consider withdrawing form the traditional Labor Certification and RIR process to re-file with the much faster system. Overall, the new system is expected to shave off approximately 4 years in the green card process.