With the economic downturn and the rising unemployment rate, the Department of Labor (DOL) has not been inclined to issue labor certifications (the first step in obtaining permanent residence status based on employment). A labor certification is essentially a determination that there is a shortage of U.S. workers who are available for the job held by the applicant. The DOL cannot make that determination if it perceives that qualified applicants in the occupation have been laid off or are looking for work.
Recently (May 15, 2003), the San Francisco office of the DOL announced its belief that there is no shortage of U.S. workers in computer-related fields , and that it would deny requests for “Reduction In Recruitment” (applications based on the employer’s unsuccessful recruitment prior to filing) for computer occupations in the San Francisco area.
Currently, the San Francisco office of the DOL is processing Reduction In Recruitment (RIR) cases that were filed in 2001, when there was much less unemployment in the local high-tech job market. Essentially the DOL has taken the position that it will not grant a labor certification based on recruitment conducted then. In its statements to our lawyers’ association (AILA), the DOL indicates its belief that there was no shortage of U.S. high-tech workers even in 2001.
“Many of the applications for computer-related occupations (high-tech industry) that we are currently reviewing in Region 6 [California, Arizona and Nevada] were filed in mid-2001, during a time when many of these companies were starting to down-size, close down, and lay-off workers. Region 6 is confident that there was applicant availability during this time. Therefore, the Reduction in Recruitment (RIR) waiver for these applications is being denied (there was applicant availability during the time that employers were conducting recruitment). These applications are being remanded to the SWA [state job office] for supervised recruitment.”
In fact, we are seeing two types of DOL responses to California high-tech RIR cases. In many of those cases, the DOL simply denies the RIR request and sends the case back to the state job office (in California, the Employment Development Department, or “EDD”) for further recruitment. That further recruitment will consist of three days of advertising in the appropriate newspaper (directing applicants to send their résumés to the EDD), and a 30-day job listing on the EDD placement system. These cases that are sent to the EDD for “slow track” processing will be placed in the queue for processing according to the date on which they were originally filed (not the date they are remanded by the DOL).
In other cases, the DOL sends to the employer a notice known as a “Ziegler letter.” The Ziegler letter gives the employer three options: 1) withdraw the application, 2) request that the application be remanded to the state job office (in California, the EDD) for regular processing (i.e., supervised recruitment), or 3) place one more advertisement in the newspaper and report on the results. If the employer does nothing within 60 days, the DOL will remand the case to the state job office.
The third option (advertising) could result in fast approval of the application if there are no applicants who respond to the ad, or if those who do respond are clearly unqualified. However, this option could also be a trap for the unwary, because the DOL will deny the application if it believes there are qualified applicants who respond to the ad. Therefore, if there is any question as to whether the applicants are qualified, the prudent course may be to request remand to the state job office (or do nothing, in which case the case will automatically be remanded).
Once the case is remanded to the state job office, it could take six months or even more than a year before the supervised recruitment begins. There is a very good chance that by then the job market will again change, and that the recruitment will reflect a shortage of qualified workers.
It appears increasingly likely that a new, super-fast labor certification (called “PERM”) will be soon. This new PERM procedure will require recruitment in multiple sources (e.g., newspaper, trade journal, internet, employer’s own website) for several months very much like the present RIR procedures. For a more complete discussion of the PERM procedure, see our May 2002 newsletter. Many employers will choose to use the PERM procedure rather than wait for the supervised recruitment under the existing procedures.
The big picture is that regardless of which labor certification procedure is used – RIR, supervised recruitment, or PERM – the labor certification application cannot be approved unless there is a demonstrated shortage of U.S. workers in the occupation and geographical area to be certified. After two and a half decades of filing labor certifications for high technology workers it is clear to me that such shortages are cyclical and persistent, and that highly skilled computer specialists ultimately will be able to immigrate based on their employment, perhaps much sooner than current conditions suggest.
* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.
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