Updates on Labor Certification Processing from Department of Labor and the White House

The Department of Labor (DOL) and the Bush Administration have recently announced policies and proposals that will affect pending and future applications for labor certification.

DOL is currently working on an expedite policy for certain labor certifications. A draft of the policy the circulating within the department, and several more months will likely pass before said policy is released. The policy is based primarily on three suggested criteria for expedited treatment: (1) where the H-1B cap of six years is nearing; (2) where a derivative beneficiary, i.e., a child, will “age out” upon turning 21 years old; and (3) where an individual in removal or deportation proceedings would benefit from an approved labor certification and a pending I-140 immigrant visa petition.

As discussed in previous articles in this column, the labor certification process is necessary for aliens to gain lawful permanent residence through an employer-sponsor for most occupations. Before the Immigration and Naturalization Service (INS) may approve petition requests, the DOL must first certify to the INS that: (1) there are not sufficient U.S. workers, who are able, willing, qualified, and available at the time of the application for a visa and admission into the U.S. and at the place where the alien is to perform the work; and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The Bush Administration has also announced a proposal that will benefit labor certifications: shifting government funds between DOL programs that will expedite the processing of such applications. Specifically, the White House wants to cut funds from the H-1B Technical Skills Training Grants program, a technology training program for U.S. workers, and shift the monies within the DOL to the alien labor certification division to speed up the processing of a backlog of cases.

The grant program intended to prepare U.S. citizens for a high-tech jobs to reduce demand for foreign workers who enter the U.S. on H-1B visas. Congress created the program in 1998 as a compromise for raising the cap on the number of H-1B visas that companies use to bring skilled foreign workers to work in the U.S. for up to six (6) years. But the national budget sent to Congress in February labeled the grants program as “ineffective,” because it allegedly only teaches low-level computer skills that do not equip U.S. workers with the skills that highly educated foreign workers on H-1B visas possess. Recognizing that a backlog in labor certification applications will not be reduced under current budgetary and staff constraints, the White House hope the re-distribution of funding will alleviate the backlog.

In light of the layoffs throughout the high tech industry as well as other employment sectors, the DOL recently released a memorandum regarding the evaluation of requests for “Reduction in Recruitment” (“RIR”) labor certifications. As discussed in previous articles in this column, labor certifications are permitted to be treated under the expedited RIR process where certain criteria concerning the position are met.

The memorandum details procedures for certifying officers (“CO’s”) to follow where available information indicates that there may have been layoffs in the occupation by the employer or layoffs in the occupation in the area of intended employment. Specifically, the CO’s are to evaluate the adequacy of the recruitment conducted by the employer, and determine the availability of U.S. workers for the occupation involved in the employer’s application. Depending on the findings, these applications will either undergo additional recruitment, or will be denied and returned to the related state agency for further processing.

Consulting a knowledgeable and experienced immigration attorney is critical to ensuring a successful application for labor certification.