By Lisa Yu, Esq.
As an attorney who has focused primarily on labor certifications for the past 14 years, I have learned a lot of lessons and want to share a few tips….
- Never promise a client that the labor certification process will be approved, you can never know if there are qualified U.S. workers;
- Never tell a client the case will be filed by a certain date, its always possible one of the required recruitment options might not comply with PERM regulations, and the process may have to be repeated;
- Always counsel employers as to the possibility of an audit, because you don’t want to explain why an anticipated 2 months process took almost two years;
- Always be conservative when interpreting the rules, the employer’s desire to have the foreign national worker permanently in the U.S., is not worth exposing your client to a battle with the Department of Labor; and
- Make it clear to all, including the employer and the foreign national that the PERM process is unpredictable. What happened in Atlanta last year, stayed in Atlanta . . . last year.
A couple of weeks ago, I thought the Department of Labor was starting to do a turnaround in expediting processing of cases. In February 2011, cases were processed in one month or less. I saw a couple of audited professional cases for New York approved quickly, and another one I filed within the New York commuting distance was approved without an audit. I thought good times were back again……then, I read the dreaded April 7, 2011 DOL Stakeholder Meeting notes. The Department of Labor stated:
“Increased integrity activities such as conducting audit investigations and supervised recruitment, which began in 2009, increase the average length of time to resolve a permanent application, as these are labor-intensive regulatory process. However, these two integrity measures also generated the highest number of denials and non-certifications, outcomes which enhance program integrity and contributed to jobs being available to U.S. workers. . . . OFLC will apply stricter scrutiny to applications. In the future, OFLC will revise the PERM application form – which expires in June 2011 – to both strengthen its integrity (by clarifying program requirements) and seek more detailed justifications in key parts of the form . . . In FY 2011, The Department intends to propose legislation to establish an employer-paid user fee to partially fund the PERM, H2A, and H-2B programs to: make the programs more responsive to labor market demand; ensure financial resources to process applications timely; and recognize the benefit of the certification is to the employer and not the public.” [Emphasis added]
This warning contains critical guidance regarding the future of labor certifications. It appears there will be more audits and more supervised recruitment; and DOL will be revising the ETA 9089 form. They will also be charging new fees. The DOL poignantly observes there is no benefit to the public, only to the employer. Many economists would argue that admitting workers and professionals with unique skills helps create jobs, and contributes to the economy.
It is by no means clear these restricitve measures will “contribute to jobs being available to U.S. workers.” Employers need to hire critical foreign workers, who most suited to performing the job, not the minimally or least qualified ones in order to be competitive and profitable. As to the announcement that DOL is changing the ETA 9089, we can only wait for this next roll-out. It took 5 years for most of us to understand and interpret the current form. Let’s hope we will receive some clarity as many are still grappling with how to interpret if the job opportunity’s requirements are “normal” for the occupation (ETA 9089, H.12). In planning to charge a fee, DOL promises to make processing faster. Is that faster than the current processing time of one to two months? If DOL is referring to address the delays in reviewing cases stuck in the audit line, well that would be an improvement. CIS constantly increases fees and we haven’t seen a correlation between fee increases and improved services there.
For the employer, who must pay attorney fees, advertising costs (at least $1,000 in Los Angeles), adding a program fee is likely to be yet another undue burden on employers seeking top talent. My instinct tells me the only part we can be sure to see is an increase in audits and denials.
One last lesson bit of advice, don’t do Charlie Sheen and boast about “winning” in the labor certification process. In today’s online electronic age, anything can be misinterpreted. As I finish writing this blog, its time to go back to helping my employer client reply to an extensive “kitchen sink” audit for my Linux administrator. I urge all employers, foreign national beneficiaries and attorney to be cautious. With unemployment rates remaining practically stagnant, the DOL is making clear that its mission is to protect U.S. workers, not to help industry be competitive or obtain critically needed workers in a highly competitive business environment.
