Tag Archives: Department of Labor’s regulations

Labor Certification – Making it Hard for Talented Foreign-Born to Stay in the USA

Many people would find it odd that after a company recruits for a position the federal government may require the employer to recruit again. That is the strange world of labor certification, a process required by law for many skilled foreign nationals to gain employment-based green cards. Given that Indians are the largest recipients of H-1B temporary visas each year, America’s questionable labor certification policy likely affects Indians more than any other group.

When sponsoring an individual for an employment-based green card, the Department of Labor mandates that employers place advertisements to show no U.S. workers are available to fill the jobs, detail recruitment results, and complete much paperwork subject to government review.

Surprisingly, the actual language of the law does not specifically say employers need to place advertisements. This is an invention of the Department of Labor. The law also does not specify that if employers “test” the labor market they must hire anyone “minimally qualified” for the job. These things come from the Department of Labor’s regulations.

Here is what the section of the Immigration and Nationality Act on labor certification states:

Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

In the past, the Department of Labor has admitted its process is paperwork-intensive for both the government and companies. In 2002, when the Labor Department issued a proposed rule to revise the system, its own rule stated, “The process for obtaining a permanent labor certification has been criticized as being complicated, time consuming and requiring the expenditure of considerable resources by employers, SWAs [state workforce agencies] and the Federal Government. It can take up to two years or more to complete the process for applications that are filed under the basic process and do not utilize the more streamlined reduction in recruitment process.”

While since then the Department of Labor has moved to a somewhat different system called PERM (Program Electronic Review Management), the new system is not much of an improvement. While PERM is theoretically faster in the initial stage, since it relies on attestations, the Department of Labor audits a high percentage of the cases. It also can force employers to engage in “supervised recruitment” if they hope to gain a green card for an employee. A chapter in the American Immigration Lawyers Association’s handbook declared, “Understanding PERM has been one of the greatest challenges in recent times in the practice of immigration law.” And PERM was meant to be the Department of Labor’s “streamlined” system.

The United States is making itself less competitive by requiring such a bureaucratic and counterproductive process for employers that wish to keep skilled professionals working for them long-term. “I have personally seen foreign nationals with U.S. masters degrees go to more welcoming countries abroad to settle because the U.S. system is so time consuming and complex,” said Ann Pinchak, a Houston-based attorney with more than 20 years of experience in immigration law.

If America hopes to retain the most talented workers in the world, a good place to start is reforming the Department of Labor’s labor certification policies. The policies do not “protect” American jobs but waste resources, discourage foreign-born professionals and make U.S. companies less competitive in the global economy.