On May 6, 2002, the U.S. Department of Labor proposed new rules that will significantly change the labor certification process.  Most importantly, the Department of Labor has proposed to shorten the processing time, which now exceeds two years, to less than 21 days.  [Note: As of October 2005, PERM cases can exceed six months, but traditional cases are backlogged as much as five years]

By way of background, a labor certification is the first step in obtaining permanent residence (“green card”) based on employment.  It has always been a lengthy and complicated process that ends with a determination by the Department of Labor that there is a shortage of qualified American workers willing to fill the foreign worker’s job.  That determination is based on a test of the job market through advertising for qualified U.S. workers.  There are currently two processes, the normal “slow track” process in which the recruitment is done after the application is filed, and the faster “Reduction In Recruitment” process in which the employer demonstrates that it has conducted adequate recruitment prior to filing.

The new process will merge “slow track” and “Reduction In Recruitment.”  Recruitment will be done in all labor certification cases before filing.  That recruitment will depend on whether the job is: 1) a professional position (such as engineer), 2) a professional position requiring experience or an advanced degree (such as a doctor or manager), or 3) a nonprofessional position (such as cook). 

Recruitment for professional positions (that do not require an advanced degree or experience) and nonprofessional positions will consist of two ads in a Sunday newspaper and a job order with the state job office (in California, the Employment Development Department) for a period of 30 days.  The advertisements must be placed more than 30 but less than 180 days before filing the application.

In addition, recruitment for professional positions (including those that require an advanced degree or experience) must include three of the six following activities: 1) job fair, 2) employer’s web site, 3) job search website other than employer’s, 4) on-campus recruiting, 5) trade or professional organization newsletter or journal, and 6) private employment firms or placement agencies.  These additional recruitment steps are not required for nonprofessional jobs.

Like the current procedure, employers will have to prepare a log that records the results of the recruitment, including the number of applicants, the number hired, and the reasons the others were not hired.  This recruitment log will not be submitted with the application, but must be submitted if the Department of Labor later conducts an audit.

The proposed rules seriously restrict the minimum requirements that employers can use to reject U.S. applicants.  Generally, only basic education and experience requirements can be used, but there are some exceptions to this rule.  For example, a special requirement (such as a background in Java programming) could be used if the employer hired a U.S. worker for the same job within the past two years, and the U.S. worker met that requirement at the time of hire.  A special requirement could also be used if the employer can demonstrate (with a copy of local laws, articles, or advertisements by other employers) that the requirement is normal and routinely required by other employers in the industry.  A language requirement can be used if the employer can demonstrate that a large percentage of its customers cannot communicate in English.

At this time, it is unclear how much of the proposed rules will become final.  It is clear, however, that the nature of the labor certification process will change dramatically.  Probably, it will be more difficult to get a labor certification for occupations in which there is not a clear shortage of American workers.  However, in most cases, the process should be more streamlined, and take months instead of years.

You can find the full text of the proposed regulations in the Federal Register (Click here) (scroll through the contents to "Employment and Training Administration"). That is a very large file so it will take some time to download.

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