Labor Certification is normally a prerequisite for immigrants seeking employment-based applications for lawful permanent residency. Labor certification is a process whereby the Department of Labor determines that there are no U.S. workers able, willing, qualified and available for the position for which the labor certification is being sought. Typically, the intended immigrant is already working in the position while in nonimmigrant status such as an H, E or L-1.
The process whereby an alien may secure certification has been a source of great frustration for the non-citizen applicant, the U.S. employer and their attorneys because of the lengthy processing times and what have become inconsistent processing standards and requirements.
Because many of the applicants are employed pursuant to temporary visas with set and determined periods of legal status, the long process causes great concern about obtaining lawful permanent residence before their nonimmigrant visa expires.
At the opposite end of the frustration spectrum are applicants who are not in legal status but filed the application for labor certification before April 30, 2001 to take advantage of the saving clause known as 245i. Their hope is also for efficient processing as they live each day in unlawful status hoping that they will not be detained prior to their labor certification.
Because of the long wait and backlog of regular labor certification applications, there has been a dramatic increase in the filing of Reduction in Recruitment (RIR) labor certification applications. This alternative to the traditional labor certification process, RIR requires an employer to submit documentation of a pattern of recruitment within the six-month period preceding the filing of the application. RIR cases were created to give priority to certain cases so that they would be processed in a quicker fashion. That has not been the result.
Against this backdrop of lengthy delays and frustration the Department of Labor in a much publicized and much hoped for alternative to the current labor certification process has proposed a new labor certification program referred to as PERM. This new proposal has been bounced back and forth between the appropriate government agencies for about 13 years. Rumor has it that PERM might be in place as early as next month.
PERM or Program Electronic Review Management system is essentially a massive streamlining of the labor certification process. Bypassing the State Workforce Agency (SWA), PERM would require recruitment prior to the filing of the application with a response in a matter of weeks not months or years.
As of this date the Department of Labor has not published an interim rule implementing this knew procedure and the impact upon those who have pending labor certifications is not clear. It is likely, however, that the new procedures will provide for conversion from regularly filed cases to PERM cases. Whether or not converted cases will receive priority treatment as opposed to the newly filed ones remains to be determined.
Whether proceeding by way of RIR, PERM or traditional labor certification, it is important to create and implement a workable strategy. Keep in mind that when the labor certification process is completed and you evolve into the I-140 stage of the case, your employer will need to demonstrate that it has the ability to pay you. When making the determination as to whether you will take up employment or remain employed with a sponsoring employer, you may wish to ask if the ability to pay will be a problem in the future.
We know it is easy to say and tough to ask, but speak up for yourself. After all, why are you making the sacrifices you are? Is it so your family can come here years later as an immigrant, deriving from your application? Don't waste your time working for an employer that will be unable to take your labor certification case to the next level.
These very same employers-the one's who take advantage of you under the pretext that they are filing a labor certification for you-when it comes time to produce relevant documents, often refuse to do so. Or, worse yet, they do so, however, their tax returns are so unscrupulously prepared, that there is no way that they will have the ability to satisfy the ability to pay standards. Remember: your employer must pay you the prevailing wage as assessed by the Department of Labor. Hair-brained schemes that have resulted in your being paid partially on the books and partially off and for less than you are actually worth, may in fact come back to haunt you. More on this later.