Overview of Current System

The entire labor certification system including more than 100 pages of regulations found at 20 CFR Parts 655 and 656 are based on one paragraph in a law passed by congress in 1965 making those seeking permanent employment in the United States inadmissible unless the Department of Labor finds:

(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.

To effect these changes, the Department of Labor implemented regulations requiring employers to “test” the labor market to find qualified, available, and willing US workers wanting to work at the offered job. US workers are citizens and permanent residents. If no US workers can be found, the Department will so certify by issuing a “labor certification.” This test was originally accomplished through supervised recruitment, recruitment directed by the State Workforce Agency (SWA), in California this is the Employment Development Department (EDD).

By the mid-1990s, the Department noticed severe backlogs at the SWAs and rising costs to support the program. The Department funds all SWA labor certification related activities through grants. To reduce these costs and the backlog, the Department issued a letter endorsing a new process called Reduction in Recruitment (RIR) processing. RIR placed recruiting burdens on the employer lessening SWA involvement and therefore reducing costs. After several years the Department realized that long term cost reduction and ongoing backlogs required a major overhaul of the labor certification process.

Reduction in Recruitment Processing – RIR

RIR requires employers to engage in six-months of prefiling recruitment and to then submit standard labor certification forms with a request that the case be processed under RIR rules. Here the employer is required to show that it has engaged in a “pattern of recruitment” and it must submit copies of all recruitment evidence with the application.

“Pattern of recruitment” is not defined in the regulations. The Department will not conclusively define what qualifies as a pattern of recruitment and regional offices often have different standards. Most recently the Department has concluded that a pattern of recruitment consists of at a minimum a newspaper ad and two other forms of recruitment. Other forms include ads on the employer’s website, commercial jobs websites, referral bonus plans, private recruiters, on-campus recruiting, and other reasonable methods.

RIR cases are first filed with the State Workforce Agency (SWA) – in California the Employment Development Department (EDD). After the SWA has completed review, the cases are forwarded to the regional Department of Labor office for final review.

RIR currently suffers a two-year backlog.

Supervised Recruitment

Supervised Recruitment requires employers to file standard labor certification forms with the SWA. Then the SWA directs the employer to place advertisements at certain times and places directing job applicants to respond to a special address. The responses go directly to EDD and EDD evaluates them and forwards qualified applicants to the employer for action. The employer must then must explain the bona fide job related reasons or each referred applicant that it does not hire.

After EDD has completed directing the recruitment, it forwards the resulting information and documentation to the Department of Labor for final review.

Supervised recruitment currently suffers a three to five-year backlog.

Overview of “PERM” Labor Certification Rules as Proposed on May 6, 2002 (Note: many of these proposed regulations were not adopted in the final regulations)

The Department of Labor announced plans to devise a new automated labor certification program called Program Electronic Review Management, or PERM on August 25, 2000. After almost two years, the Department published proposed regulations in the Federal Register. Those proposed regulations drew hundreds of comments and the Department has worked since then to make revisions and issue the final regulations.

The PERM regulations are now substantially complete and scheduled to be delivered to the Office of Management and Budget (OMB) for final review on Monday August 4, 2003. The current DOL timeline forecasts publication of the final interim rule in October 2003 and initial acceptance of electronic applications by January 2004. Current delays in adopting these regulations result from technical problems creating smoothly functioning Internet-based application forms. These problems may push final adoption past January 2004.

Although PERM was discussed for years, it appears DOL’s rising costs in administering the labor certification program are driving the new program because they will cut costs and reduce DOL’s workload. It appears likely that DOL will adopt PERM soon.

The proposed system would allow all new labor certification applications to follow an attestation-based system that resembles a combination of current RIR processing and the new attestation-based online labor condition application processing system for H-1B cases. The new PERM system would rely on employers to complete a form with 56 questions that would ask questions including whether the employer provided notice to its employees, whether the alien beneficiary gained any of the qualifying experience with the employer, whether the alien is currently employed by the employer, whether proficiency in a foreign language is required to perform the job duties, whether US applicants were rejected for solely job related reasons. The majority of questions would be yes or no.

PERM differs in important ways from the current system. But please remember that the final regulations will likely be different than the proposed regulations because of comments and additional editing and those changes have not yet been released at the time of publication and are therefore not discussed in this update.

PERM will provide expected 21 day processing for cases. This benefit alone will revolutionize the current labor certification processing regime. But the proposed PERM regulations also provide considerable changes that will likely reduce the number of professional employees that will qualify for labor certification.