In the last edition of the WLU, we warned employers of foreign professional workers of an impending assault by the U.S. Department of Labor (DOL) on the H-1B visa program. In part, the government's aggressive stance toward large-scale hiring of foreign professionals was prompted by a May 1996, Inspector General (IG) report, calling for an end to the program in its present form.
In the same report, the IG leveled even more severe criticism on DOL's permanent alien labor certification program. Subject to substantial regulation, this program permits U.S. employers to hire foreign workers in permanent positions when there are no qualified Americans available for the job. First, at the state-level, a State Employment Security Agency (SESA) supervises a recruitment to determine whether there are qualified Americans in the local labor market. Then the DOL's Regional Certifying Office (CO), examines the application and results to decide whether to grant certification. Calling the program's labor market test "perfunctory at best and a sham at worst," the IG concluded that it did nothing to protect the jobs and wages of American workers and similarly called for its elimination as it now exists.
Stung by the IG's criticism while at the same time facing dramatic budget cuts and staff reductions at the SESAs responsible for much of the program's administration, DOL recently issued a general administration letter (GAL 97-1), mandating steps to increase the efficiency of the certification process. The new measures are first and foremost intended to prevent employers from utilizing unduly restrictive job requirements as a means to avoid hiring American workers.
But the DOL measures also are aimed at assisting SESAs and COs with reducing processing backlogs and handling increasing workloads with fewer staff or, as DOL management sees it, "doing more with less." While many of the DOL changes may well achieve the desired increase in overall efficiency in the certification process, employers must understand that they will shoulder the burden of compliance with radically changed requirements and procedures. In most cases, employers will be expected to demonstrate persuasively that the job offered existed before the alien worker was initially hired, to eliminate entirely any job requirements or duties presumed by the government to be unduly restrictive, and to meet tighter deadlines for responding to government requests for additional information or documentation. The following is a summary of the notable changes in the permanent labor certification process.
Unduly Restrictive Job Requirements
DOL announced that SESAs will no longer authorize recruitment where applications contain restrictive job requirements, or requirements which did not exist before an alien was hired. To meet this standard, employers must provide documentation ? including position descriptions, organizational charts, payroll records, resumes of former incumbents, or other objective evidence ? to establish that the position and its present requirements previously existed within its organization. This new requirement is expected to make the labor certification process exceedingly difficult for many sponsoring employers. Jobs which did not exist before the alien was hired will be considered jobs that are not truly open to U.S. workers, unless the employer can clearly demonstrate that a major change in its business operations caused the position to be created after the alien was hired.
If the SESA determines a requirement or job duty too restrictive, it will require that the employer establish a business necessity justification to support it. If the employer fails to timely respond, the application will be canceled. Any refiled application will be treated as a new application with a new filing date. On the other hand, if the employer does submit the necessary information within 45 days of the SESA?s request, its application will be referred to DOL for a decision, prior to any recruitment, on the ?acceptability? of its business necessity justification alone.
Assuming DOL is ultimately persuaded by and accepts the employer?s business necessity explanation, the application will then be remanded to the original SESA and recruitment will be permitted, albeit under instructions for expedited handling. If the explanation is not accepted, then DOL will issue a Notice of Findings (NOF), indicating its intent to deny the application as unduly restrictive. The employer may, of course, respond to the NOF and again try to persuade DOL of its justification, but a reversal is unlikely absent a compelling argument not offered initially. In most cases, the employer will be better off amending its application in response to the NOF to eliminate the basis for DOL?s objections or to attempt to establish a sound record for a lengthy and difficult appeal to the Board of Alien Labor Certification Appeals in Washington, D. C.
Reductions in Recruitment
For employers who conduct and track the results of extensive recruitment, who pay competitive wages, and who still can?t find qualified job candidates, there is some potentially good news in the DOL changes. SESAs and COs will now encourage requests for Reduction in Recruitment (RIRs) on applications that meet certain basic criteria, including an offered job in an occupation with little or no availability of U.S. workers, no restrictive job requirements, wages that meet all prevailing wage standards, and a showing of adequate prior recruitment through normal sources for the industry and occupation in question within the previous six months. An RIR with no deficiencies will be given expedited consideration.
One caveat, however: if there are deficiencies in the prior recruitment or application, the CO will remand it to the SESA for standard recruitment where it will go to the back of the line with no hope of expedited consideration. Hence, a request for RIR without a high probability of success under the above-described criteria should not be submitted ? it is likely to result in greater delay, not less.
Of great relief to employers who play by the rules but make the occasional mistake nonetheless, DOL will now permit COs to exercise the discretion to excuse harmless error. If the CO determines that the labor market was sufficiently tested to warrant a finding that no qualified U.S. workers are available, minor mistakes made by an employer attempting to fully comply with the regulations should not result in summary denial by the SESA or CO. Naturally, such a favorable exercise of discretion should never be relied upon, as harmless error findings will only be made on a case-by-case basis and will likely be rare.
And finally, at its discretion, the CO may make expedited determinations on applications based on favorable recommendations of the SESA. After completion of recruitment, accelerated review may be given to applications which offer the prevailing wage, list no special requirements or job duties, and attract either no applicants or only a few applicants all of whom are clearly unqualified for the job.
The changes outlined above do not represent the entire body of procedural changes, but merely the more notable ones. While the new measures, particularly those relating to unduly restrictive job requirements, place greater burdens on all sponsoring employers, the positive message appears to be that employers who comply with the requirements in good faith and respond to the SESA or CO in a diligent and timely fashion will be rewarded with expedited processing times and more predictable outcomes. For guidance in navigating the new changes in the permanent labor certification process, contact the immigration attorneys in Venable?s Labor Group.