How To Save A Failing Labor Certification Application

I have encountered an increasing number of new clients in recent months who are utterly distraught over the state of their Labor Certification Applications. The Labor Certification, as I have discussed in previous articles, is a method through which an alien can obtain a “green card” based on an offer of employment. The proposed employer, or “sponsor,” files an application to “certify” that there are no U.S. workers qualified, willing, and available to perform the job duties, and that the hiring of a particular alien will not adversly affect labor conditions in the United States.

For most jobs the employer must advertise the position for three consecutive days in a newspaper of general circulation, and then show the U.S. Department of Labor (DOL) through the California Employment Development Department (EDD) that none of the U.S. workers who applied for the job were qualified. The results of the recruitment are then forwarded to DOL for review by a “Certifying Officer” (CO). Should the CO be satisfied that the employer engaged in a good faith recruitment effort, and that the results of the recruitment establish that there were no U.S. workers qualified, available, and willing to perform the job, the CO will “certify” these results, and the sponsor may then file a Petition for Alien Worker with the INS.

The foregoing represents the labor certification process in a “nutshell.” The questions most clients ask are – what is the length of time the process takes, what happens if many U.S. workers apply, and what happens if the case is not approved. First, EDD is presently taking upwards of one year to complete the Recruitment phase of the process, which includes initial filing, correcting or amending the application, and interviewing U.S. workers who apply. The file is then sent to DOL, which takes 6 to 8 months to complete its processing. Therefore, a “clean case” will take approximately 18 months just to reach the point where the employer can file the Petition with INS.

To show a good faith recruitment effort, and to speed up the application processing time, the employer must interview interested and apparently qualified U.S. workers “as soon as possible.” The employer will receive applications from EDD, the employment departments of other states, or directly from applicants. After receiving the resumes, the employer must interview all applicants to carefully determine whether they meet the requirements for the job in terms of education, experience, and particular skills. Applicants may not be rejected for failing to meet requirements that are not listed on the application or for reasons that are not “business related.” The employer must also keep in mind that EDD will review the employer’s recruitment documentation (e.g., notes on interviewees, letters sent to applicants by the employer, telephone records that verify the employer attempted to contact applicants, etc.). With a competent attorney guiding the employer through the process, the employer can, in most cases, establish that the alien employee is the only applicant qualified for the job even when there are numerous U.S. citizen applicants.

The usual problems that arise in labor certification cases are that the attorney and employer tried to “narrowly tailor” the job requirements to the alien’s background, the employer does not document attempted contacts of applicants, or the employer rejected U.S. workers for other than “lawful, job related reasons.” These mistakes are easily avoided when the employer is educated as to the critical rules and nuances of the process before recruitment begins. Although EDD will not “deny” the case if these deficiencies appear, the CO, after receipt of the file from EDD, will determine whether the employer has committed any errors, and make a determination. If the CO determines that the employer failed to engage in “good faith recruitment efforts,” or that the job was not clearly open to U.S. workers,” the CO will issue a “Notice of Findings” (NOF).

The NOF will set forth the problems the CO finds in the application and recruitment process, and will allow the employer a short period of time to either remedy the defects or to rebut the findings. The NOF should be avoided at all costs. If you have received a Notice of Findings, after waiting almost two years for your application, this probably means that your representative failed to properly define the job duties in the application, or failed to instruct the employer on how to conduct the recruitment. Nonetheless, all is not lost. The employer has the opportunity to rebut the findings or to remedy any defects. However, some defects may not be remedied. This means that it is it is extremely critical for the employer to document all recruitment efforts and to be prepared to address any allegations of bad faith. The CO will review the employer’s response to the NOF, and either certify or deny the Labor Certification application. Although an appeal to the Board of Alien Labor Certification Appeals (BALCA) is possible, this process takes two years. Therefore, one should be absolutely certain that the CO made an error before filing on appeal.

My advice to my clients is to first make sure the application contains the proper educational, experience, and skills requirements. Much of the agony that results in many cases can be avoided here. When a NOF is received, the employer should not give up, but rather should have his documentation prepared to rebut the findings, or simply follow the CO’s instructions as to how a defect may be remedied. In any case where a NOF is received, or the case is denied, a client might want a second opinion from experienced counsel regarding the best course of action, rather than relying on the assertions and promises of the counselor that caused the NOF or denial in the first place.