The U.S. Department of Labor (DOL) announced some rather encouraging changes last month that may affect thousands of California’s immigrants. The DOL has been under much criticism in recent years, due to extreme delays in processing times of various applications related to immigration. The developments foreshadow what should be vast improvements in the DOL’s efficiency and accountability, however, active communication between applicants and the DOL will still be necessary to achieve results in individual cases.
In many employment-based cases, applicants for permanent residence and certain nonimmigrant visas must interface with the DOL as well as the INS in order to obtain the status they desire. Most people seeking to obtain permanent resident status in the United States through an employer’s Immigrant Visa Petition (I-140) must first obtain a “labor certification” from the DOL. The labor certification process is designed to establish that there are no qualified, willing and available U.S. workers in the area of intended employment.
Up until a few years ago, this process took approximately two years, with the State Employment Security Agency (“EDD” in California) supervising the recruitment process, and the DOL issuing final decisions on applications. The processing time has suffered increasing delays at both the DOL and EDD, such that it appears recently filed “supervised recruitment” cases could take several years.
In 1997, the DOL introduced a modified process called Reduction In Recruitment, (“RIR”) through which the employer conducts an independent recruitment campaign prior to filing. The RIR strategy, if successful, will substantially decrease the processing time for labor certification cases. The process is a double-edged sword, however, and if the case is not successful, the case is referred to the back of the line of “supervised cases.”
In the nonimmigrant context, the most common case involving the DOL is the H-1B professional working visa, in which the employer must file a “labor condition attestation” (“LCA”) with the DOL before filing the Petition with the INS. The LCA attests that there are not sufficient U.S. workers to fill the position and that the employer will pay the “prevailing wage,” among other things. Although this process is relatively painless compared to the labor certification, issues pertaining to the “wage offered” can become serious problems if not properly addressed.
The first change announced at the DOL in Region 9, which covers California, is that Ms. Rebecca Marsh Day, the Certifying Officer (“CO”), is taking early retirement. An interim CO is taking her place until a permanent appointment is announced. As yet, it is unclear whether this change, in and of itself, will result in significant improvements at the DOL.
The DOL addressed common problems in filing LCAs, including methods to determine the prevailing wage and prompt refiling when a result is not received within five days. The DOL is also working on restaffing specialists and support staff in the wake of the departure of Ms. Marsh Day and two other ranking officials.
The DOL confirmed its preference for RIR cases, indicating that cases filed as of August 1, 1999 are under process. The DOL, however, validated a short list of occupations it considers proper for RIR processing, including Engineers, high-tech positions, Scientists and some University Professors.
Although no one can predict to what extent the new developments will improve the DOL overall, they are clearly a step in the right direction. The old regime was not operating as efficiently as possible, and change became necessary. The end result should be that applicants will be able to benefit from the improvements, as long as applicants adhere strictly to the DOL’s procedures.