The Labor Certification Nightmare and How to Avoid It or Escape the Delay

For most persons who are being petitioned by an Employer, a labor certification application is a necessary first step. Under the traditional method, the labor certification is first filed with the local SESA (state employment security agency–in California, the Employment Development Department, or EDD). Once filed, the SESA issues assessment notices that ask questions related to particular issues about the case.

Right now, the California EDD is still barely processing applications that it received back in January 1998. Because the EDD received thousands of applications that were filed to meet the January 14, 1998 deadline for the 245(i) benefit, the EDD has been working on cases filed on or before January 14 for almost eighteen months. Cases that were filed after January 14, 1998 have been waiting nearly one year and a half to receive any attention by the EDD and the wait continues to grow.

Once the SESA is satisfied with the application, the case enters the recruitment stage where advertisements are placed in newspapers, etc. After the recruitment stage is completed, the case is forwarded to the Department of Labor for a final review.

While the EDD appears to have a long backlog, the Department of Labor is even worse. Currently, the Department of Labor office for Region IX (California, Arizona, Nevada, Hawaii and Guam) is processing standard Labor Certifications that were received on June 18, 1996. This processing date has progressed less than one month in the last 18 months. No other region in the country is as behind on its labor certification processing as Region IX. In fact, Region VIII in Philadelphia is processing applications as soon as they are received. At the present rate, it may be 10 to 20 years to get through the process.

This delay is the source of extreme frustration for many applicants who are stuck in the DOL/EDD nightmare. Unfortunately, as far as attempting to receive individual attention to a particular individual’s case, the DOL refuses to give any assistance.

However, there is one particular remedy for persons who are willing to go that extra mile. A special “fast-track” method of labor certification is available. Through this fast-track labor certification application process, the employer pre-advertises for the position and must demonstrate that no one who is qualified for the position is available among the applicants.

Only after the advertisements have been run does the Employer then file the labor certification application as a reduction in recruitment (ARIR) case.

Due to the growing backlog at the Department of Labor in Region IX, persons who have traditional labor certifications still at EDD or sometimes, even at DOL, may want to look into the possibility of refiling their cases as RIR cases.

The INS recently issued a memorandum indicating that their position on labor certification cases where the application was withdrawn or canceled may still be eligible for 245(i) grandfathering if the case was “approvable” when filed. Although there is no clarification on how this standard shall be applied or who will even make such a decision, this memo appears to indicate that, someone who filed a traditional labor certification prior to Janaury 14, 1998, may still utilize the 245(i) benefit even with a subsequently filed fast tract labor certification application.

Many technical legal issues are involved as to whether I would recommend re-filing a labor certification. In order to properly assess these issues, I would strongly recommend speaking directly with an Immigration Law specialist before taking any action.

An approved labor certification is required in order to file an I-140 Petition for Alien Worker for most job positions. At the present rate, many traditional labor certifications within Region IX may take as long as a decade to receive an approval. Due to the DOL’S apparent indifference about it’s growing backlog of labor certification cases, perhaps it is time to re-evaluate your case in it’s current situation. For those who have not yet filed their labor certification applications, be sure to inquire about “reduction in recruitment” as an option.