Why Some Labor Certification Cases Are Unsuccessful.

More and more Filipinos are coming in to my office inquiring about sponsorship from an employer (the Labor Certification process) as a way of legalizing their immigration status in the United States while others tell the sad story that the Department of Labor has already denied their Labor Certification application. Unfortunately, many people have a basic misunderstanding about the Labor Certification process. Over my sixteen years of specializing in the practice of immigration law and representing thousands of successful clients I have seen many fatal mistakes in this area. Most of these fatal mistakes are made by notaries, fixers and/or just inexperienced practitioners.

Of course, a Labor Certification must start with an employer who is willing to petition the alien and who is both able to pay the prevailing wage for that position and has both a legitimate business and a legitimate job offer. One of the most common mistake I see being made is the failure to ascertain whether or not the petitioning employer actually has the continuing ability to pay the prevailing wage, not only starting when the petition is filed and but also for the next 2 to 3 years up to the point when the alien actually has his permanent resident interview with the immigration service. This question should be asked at the initial consultation. If the practitioner does not ask this question, it is likely that either she or he is either inexperienced in the labor certification process or just doesn’t care. It is important to remember that the petitioning employer must show sufficient revenue to pay the prevailing wage now and throughout the Labor Certification process from the initial filing date through the issuance of the immigrant visa. This can be shown either through financial statements or tax returns.

Once it has been determined that the employer has the ability to pay the prevailing wage, the precise prevailing wage must be determined. This determination should be made by your attorney and not by the Employment Development Department (EDD). The reason for this is that any prevailing wage obtained from EDD will most likely be significantly higher than the actual prevailing wage for the particular position. If the attorney merely recommends accepting the wage as suggested by EDD, the employer then becomes locked into advertising this wage and the Labor Certification is doomed even before it begins. Qualified job applicants know the market wage for their particular position. As soon as they see your employer advertise an unusually high salary, qualified applicants will fall all over each other to apply. That usually means the Labor Certification will be denied. It is critical to determine the actual prevailing wage and not just blindly follow EDD’s assertion of what the wage should be.

Another critical aspect of the Labor Certification is the job description. This not only affects the prevailing wage which must be advertised during recruitment, but also defines the qualifications for the position. A skilled attorney should be able to fashion a job description which keeps the prevailing wage at reasonable levels while at the same time limiting the number of qualified candidates for that position and not disqualifying his or her client. Unfortunately, this task has so many traps for the inexperienced. It cannot be performed by the employer or the client, but must be done in collaboration with a skilled attorney. If you are already involved in the Labor Certification process and the job description was prepared by you or your employer and merely typed-up by a secretary or paralegal, your chances of success are probably quite poor.

Once the job description has been finalized and the prevailing wage has been established, the position must be advertised. This is the beginning of the “recruitment phase.” This is another phase which absolutely cannot be left to the employer’s discretion. The process of eliminating potential candidates during the recruitment phase is a highly complex procedure which has been shaped both by regulation and case law. An employer cannot be expected to successfully navigate through this maze of procedural hurdles without the assistance of a lawyer experienced in Labor Certifications. The normal rules that are considered in hiring a candidate for a particular position do not apply. The Department of Labor has regulations which must be complied with. It is not enough to just let an employer simply interview the applicants without expert guidance.

Even the most successful and closely monitored Labor Certification application will be accompanied by several assessment notices from the Department of Labor. These notices require the petitioning employer to provide different types of information and evidence in support of the particular job offer. During the Labor Certification application process, your representative should show you all assessment notices and discuss them with you and your employer. If you have not been involved in a Labor Certification process for quite some time and have not yet seen an assessment notice, you should inquire whether or not your representative is keeping you properly apprised of the progress of the case. All too often, clients have come to my office with problems that were fatal to their Labor Certification of which they were completely unaware. Apparently, some representatives handling Labor Certifications either depend upon miracles or other divine guidance to make fatal problems disappear.

In summary, Labor Certifications can be a highly rewarding and successful process if you are working with a law office with substantial experience in this area. However, there is no substitute for experience. Clients need to know how much experience the attorney has had with the Labor Certifications before the Labor Certification application is filed. Clients should be told their chances of success; all Labor Certifications have an inherent risk factor: Some more than others. The last thing you want is to waste two years of very valuable time and a substantial sum of money in an unsuccessful Labor Certification application that was doomed from the beginning because it was either a high risk case or the practitioner just did not have the necessary knowledge and experience. Nobody wants to wait that long just to discover that all their time, effort and money had gone for nothing.

If you doubt whether your Labor Certification is being properly handled, obtain a second opinion. Your lawyer should be quite willing to provide you all the documentation in your file, and most attorneys will give you a second opinion without a fee.