From AILA
Labor Certification in A Tight Job Market
With the economic downturn and the rising unemployment
rate, the Department of Labor (DOL) has not been
inclined to issue labor certifications (the first step
in obtaining permanent residence status based on
employment). A labor certification is essentially a
determination that there is a shortage of U.S. workers
who are available for the job held by the applicant.
The DOL cannot make that determination if it perceives
that qualified applicants in the occupation have been
laid off or are looking for work.
Recently (May 15, 2003), the San Francisco office of
the DOL announced its belief that there is no shortage
of U.S. workers in computer-related fields , and that
it would deny requests for “Reduction In
Recruitment†(applications based on the employer’s
unsuccessful recruitment prior to filing) for computer
occupations in the San Francisco area.
Currently, the San Francisco office of the DOL is
processing Reduction In Recruitment (RIR) cases that
were filed in 2001, when there was much less
unemployment in the local high-tech job market.
Essentially the DOL has taken the position that it
will not grant a labor certification based on
recruitment conducted then. In its statements to our
lawyers’ association (AILA), the DOL indicates its
belief that there was no shortage of U.S. high-tech
workers even in 2001.
“Many of the applications for computer-related
occupations (high-tech industry) that we are currently
reviewing in Region 6 [California, Arizona and Nevada]
were filed in mid-2001, during a time when many of
these companies were starting to down-size, close
down, and lay-off workers. Region 6 is confident that
there was applicant availability during this time.
Therefore, the Reduction in Recruitment (RIR) waiver
for these applications is being denied (there was
applicant availability during the time that employers
were conducting recruitment). These applications are
being remanded to the SWA [state job office] for
supervised recruitment.â€
In fact, we are seeing two types of DOL responses to
California high-tech RIR cases. In many of those
cases, the DOL simply denies the RIR request and sends
the case back to the state job office (in California,
the Employment Development Department, or “EDDâ€)
for further recruitment. That further recruitment
will consist of three days of advertising in the
appropriate newspaper (directing applicants to send
their résumés to the EDD), and a 30-day job listing
on the EDD placement system. These cases that are
sent to the EDD for “slow track†processing will
be placed in the queue for processing according to the
date on which they were originally filed (not the date
they are remanded by the DOL).
In other cases, the DOL sends to the employer a notice
known as a “Ziegler letter.†The Ziegler letter
gives the employer three options: 1) withdraw the
application, 2) request that the application be
remanded to the state job office (in California, the
EDD) for regular processing (i.e., supervised
recruitment), or 3) place one more advertisement in
the newspaper and report on the results. If the
employer does nothing within 60 days, the DOL will
remand the case to the state job office.
The third option (advertising) could result in fast
approval of the application if there are no applicants
who respond to the ad, or if those who do respond are
clearly unqualified. However, this option could also
be a trap for the unwary, because the DOL will deny
the application if it believes there are qualified
applicants who respond to the ad. Therefore, if there
is any question as to whether the applicants are
qualified, the prudent course may be to request remand
to the state job office (or do nothing, in which case
the case will automatically be remanded).
Once the case is remanded to the state job office, it
could take six months or even more than a year before
the supervised recruitment begins. There is a very
good chance that by then the job market will again
change, and that the recruitment will reflect a
shortage of qualified workers.
It appears increasingly likely that a new, super-fast
labor certification (called “PERMâ€) will be
implemented by the end of this year, perhaps even by
the fall. This new PERM procedure will require
recruitment in multiple sources (e.g., newspaper,
trade journal, internet, employer’s own website) for
several months very much like the present RIR
procedures. For a more complete discussion of the
PERM procedure, see our May 2002 newsletter. Many
employers will choose to use the PERM procedure rather
than wait for the supervised recruitment under the
existing procedures.
The big picture is that regardless of which labor
certification procedure is used – RIR, supervised
recruitment, or PERM – the labor certification
application cannot be approved unless there is a
demonstrated shortage of U.S. workers in the
occupation and geographical area to be certified.
After two and a half decades of filing labor
certifications for high technology workers it is clear
to me that such shortages are cyclical and persistent,
and that highly skilled computer specialists
ultimately will be able to immigrate based on their
employment, perhaps much sooner than they think.
-