Recent Developments in the Labor Certification Program
Posted Jan 04, 2000

The U.S. Department of Labor (DOL) announced that are many regulations affecting several areas of the foreign labor certification program. We believe that the following are of specific interest to readers of the Immigration Law Bulletin of The Law Office of Sheela Murthy.

First, the H-1B regulations, which DOL stated are "near on the horizon." As many of you may remember, the American Competitiveness and Workforce Improvement Act of 1998 required the DOL to implement regulations with respect to many issues. The DOL had enacted interim final regulations but certain provisions like the H1B dependent employer provisions requiring additional attestations from such employers were awaiting the final regulations. DOL states that they should be out soon.

Second, the DOL is focusing on regulations for the new H1C nurses category. Although this category is limited in application, affecting few in comparison to the H1B regulations, the mandate under the law for the DOL to publish regulations within 90 days of passage requires its immediate attention and resources on the H1 C regulations.

Third, DOL stated that the regulations are in final form, to allow for the conversion of existing regular labor certification cases (which are heavily backlogged in many states) to reduction in recruitment or "RIR" cases. This conversion to RIR, by submission of post-filing recruitment, would preserve the priority date and allow for expedited approval of the labor certification. With the possibility of visa dates regressing, such a move would be particularly helpful for Indian and Chinese nationals.

Fourth, there are proposed regulations to introduce a new approach to complete and streamline the approval process for permanent labor certifications. The DOL believes that its goal of processing the labor certification within 30 days is expected to be met and exceeded in 85% of the cases. While the proposal has not yet been reduced to writing, it is expected that the new process will be attestation-based. Employers would affirm that they have taken certain specific recruitment steps, and that those steps did not result in qualified, available and willing U.S. workers. The DOL would retain the right to audit certain companies, based on certain profile criteria and/or at random. In certain cases, the DOL could require recruiting using a process similar to the current, traditional labor certification process. These regulations also are being developed, with an implementation date proposed for October 1, 2000.

Prevailing Wage Issue :
There has been much confusion and detailed discussion over the prevailing wage issue for the permanent labor certification process since the OES survey data, which DOL uses to provide the prevailing wage for permanent labor certifications, would violate the requirements of the regulations and of GAL 2-98. The DOL acknowledged that the OES does not conform to the regulations. Again, we see the double standards at play, where a private employer with limited time and resources has to comply with a higher and different standard to figure out the prevailing wage, while the DOL uses survey data that it would itself disqualify if it was any other private employer.

95% of Prevailing Wage :
Currently, employers are considered to satisfy the prevailing wage requirement if they pay no less than 95% of the prevailing wage obtained from the survey. DOL mentioned that that 5% leeway could soon disappear!

Duplicate LC or RIR Filings :
The DOL was understandably not very enthusiastic to encourage employers to file more than one labor certification application on behalf of the same beneficiary for the same job opportunity. With limited resources and a shortage of staff, the backlogs could increase further with multiple applications. AILA opined that such an approach is permissible under current regulations. DOL conceded that it most likely is allowable under the terms of the regulations, but dislikes the approach.

Problems with Receipt Date for 245(i) Grandfathering Purposes : DOL believes that labor certifications that were filed on or before January 14, 1998 may have inadvertently remained unopened in SESA mail rooms for several days. This may have resulted in such labor cases being stamped with a post-January 14, 1998 receipt date even if filed by the section 245(i) January 14th deadline. DOL believes that it now cannot change its date, and the responsibility should now vest with the INS to determine if the case is grandfathered under section 245(i) of the Immigration and Nationality Act. Evidence of having filed on time, like a filing receipt, would also be acceptable to the DOL.

Conclusion :
Even though we are concerned with certain aspects of DOL procedures, we at the Law Office of Sheela Murthy are delighted that the DOL has finally understood and acknowledged the importance of retaining the priority date and allowing the conversion to RIR. By allowing for the conversion of traditional labor certification cases to the RIR category, DOL will help many applicants who have been waiting for several years.