To those of you who have watched with dismay as labor certification cases get backlogged both at the local state office and at the federal regional department of labor offices throughout the country, take note: you are not alone, and, it’s not going to get any better. Labor certification seems to have ground to a virtual standstill in most cases. Even labor condition applications are taking 30 to 45 days to process in some regions.
What does all this mean? To understand the effects of a constricted labor certification process on an immigrant’s quest for a green card, let’s examine the background. Further details can be found on my website at www.immigration-america.com, in the articles “The Golden Door, Parts I & II.”
Labor certification is a process by which the U.S. Department of Labor certifies that a job for which a foreign worker is desired cannot be filled by any qualified U.S. Worker. This proves that the foreign worker is not displacing an American worker. In this way, the Department of Labor protects the jobs of U.S. Workers.
Subsequent to the Immigration Act of 1990, the U.S. Department of Labor was given an additional responsibility: that of insuring that the wage scales in American business and industry were not being pulled downward by cheaper foreign labor. Through a process called “prevailing wage attestation”, the Department of Labor (DOL) verifies that a salary being offered to a foreign worker is in line with the salary for similar jobs. The DOL looks at the salary for that particular job in the specific area of the country where the foreign worker is going to be employed. The primary piece of paper that is proof of the prevailing wage attestation is the LCA or “Labor Condition Application.” The Labor Condition Application is a declaration by the employer that the employer is going to pay a particular specific wage to the alien employee and that wage is within 95% of the prevailing wage for the position in the geographic area of employment.
The labor condition attestation and the prevailing wage determination are processes that come into play in the issuance of a non-immigrant H-1B or similar visa application.
Labor certification, on the other hand, is the first step in a complex series of procedures that eventually would lead to the issuance of a “green card” to the foreign worker and his or her immediate family members. Once the labor certification is approved, the employer must then file an application to have the foreign worker classified as an “immigrant worker” under certain specific categories as authorized by the law. Once that “immigrant worker” application is approved by the Immigration Service, the foreign worker then files the final application which seeks the issuance of a “green card” from the Immigration Service. In legal terms, this final stage is known as “adjustment of status.” The foreign worker is seeking to “adjust status” from that of a non-immigrant to that of a permanent resident alien. Once the application for adjustment of status is filed, the foreign worker can also apply for employment authorization for self and family.
So much for the background. Now how does all of this tie into backlogs at the state and federal alien labor certification divisions?
The answer is simple. Most non-immigrant visas have a very specific period of validity. This period can be extended under certain circumstances. However, most non-immigrant visa categories have a cap which may not be exceeded. For example, an H-1b worker cannot be employed for a total period of more than six years as an H-1b worker. If such worker needs to be rehired as an H-1b worker and the six year period has expired, that worker must spend at least one year outside the United States prior to reentering the United States again as an H-1b worker. This could be devastating for many employers. Who would want an H-1b worker who is productively and gainfully employed to leave his or her employment and remain outside the United States for a minimum of one year?
It used to be that the labor certification process, the petition for immigrant worker, and the final adjustment of status application could take anywhere from 1 ½ to 3 years depending on the location that the labor certification had been filed. Labor certifications are filed in the state where the alien worker is employed. However, given the increasing backlogs both at the local state level and at the federal level, these processing time frames have now become unreal expectations.
For example, in Texas (DOL Region V) the local state office which oversees labor certifications is the TWC, Texas Workforce Commission. The TWC is taking one year for initial review of an application. This means that once a labor certification application has been filed with the TWC, it is reviewed for completeness, accuracy, and adherence to DOL regulations only one year after the filing date. Right there you have a one year backlog. Once recruitment for the position is conducted, the recruitment summary listing the results of the candidates who applied for the job is sent to the Regional U.S. DOL office.
Both local and Regional Department of Labor Offices throughout the United States are in a state of crisis. Due to under funding from the DOL, the offices have had to slash labor certification analyst positions. These analysts are responsible for reviewing and approving labor certification applications. In a recent conversation with the Chicago Regional Office of the DOL (Region VI), it was revealed that there were only six analysts in the office, and none of them were working on permanent labor certification applications. For the last few months, all that the analysts had been doing was reviewing and processing labor condition applications (for the non-immigrant worker petitions).
A majority of the regional offices of the DOL are taking at least eight to twelve months to review and certify permanent labor certifications.
Let’s do a little simple math at this stage. If initial review prior to recruitment takes one year, recruitment takes another three to four months, and subsequent processing at a DOL regional office takes another year (all these are best case scenarios), we’ve already clocked 2 ½ years since the process has begun. Thereafter, the Immigration Service is generally taking four to six months to process the petition for immigrant worker. Add to that a minimum of another eight to ten months to process the application for adjustment of status and you add another fourteen to sixteen months to the total. This pushes the time frames up to a minimum of four years. None of this includes the time you, your employer or your attorney will take in drafting documents and preparing the applications, conducting the recruitment and responding to DOL or INS requests.
Again, remember that this is in my estimate a best case scenario. Applications can, and do take a lot longer. There are some DOL regions where there are only one or two analysts. Imagine their backlog!
The final hurdle comes at the “adjustment of status” stage. Due to congressionally mandated restrictions, only a certain number of immigrant visas (“Green Cards”) can be issued to foreign workers each year. For workers from some countries, the backlog can last for 1-2 years even for skilled workers, with waits of 5-7 years being common for unskilled workers. This means a foreign worker can’t apply for a green card until his or her visa can be approved! This could add a minimum wait to most employment-based adjustment applications.
What does this delay mean for foreign workers who plan to apply for labor certification? This delay means that you do not have much time before you need to decide exactly what you want to do. Employers need to be proactive and begin the labor certification process as soon as possible. Remember that changes in the law and a potential restructuring of the immigration service and the labor certification process could mean further significant delays.
For instance, the DOL is even floating a proposal to levy a substantial fee (some sources quote this as being between $5,000.00 and $10,000.00) for each labor certification application. The immigration service is in the process of being reorganized under a proposal announced by INS Commission Doris Meissner on March 30, 1998. All of these changes spell further delays.
It is foolish to blame problems on the Department of Labor or the INS when we should recognize the delays inherent in these huge government bureaucracies. It is imperative that we act in a timely and efficient manner to file our labor certifications as early as possible. Thereby we obtain the full benefit of the non-immigrant visa category to keep the alien worker legally in the United States until the green card is finally issued.
Copyright, Farhad Sethna, 1998; All Rights Reserved.