May 13 2002

DOL PUBLISHES PROPOSED RULE TO SIMPLIFY LABOR CERTIFICATION

On May 6, 2002, the US Department of Labor (DOL) published a proposed rule to simplify the foreign labor certification process.

The proposed rule is designed to streamline the labor certification process, which has been lengthy, complicated and labor-intensive for both employers and the government. Under the current system, government backlog can force employers to wait up to four years for labor certification approval. Even cases filed under the Reduction in Recruitment (RIR) process - created by the DOL to speed up labor certification - are taking over one year because of an increased case load over the past several months, as well as the fact that the system requires review by both a state agency (now referred to as State Workforce Agencies, or “SWAs”) and the Federal regional counterpart.

Under the proposed system, employers will submit applications directly to an Employment and Training Administration (ETA) application processing center at the US DOL after they have obtained a prevailing wage determination from the applicable SWA. Employers will no longer be required to submit evidence of recruitment efforts in each case. Instead, they will simply attest that they have complied with all mandated recruitment efforts and be required to maintain records of their recruitment in the event of a DOL audit. The automated process will review applications based on certain predetermined selection criteria. Applications with problems will be flagged during the automated process for further review and/or audit. Some applications, regardless of criteria, will be marked for review to ensure a correct flow of automation. For applications not audited or reviewed, the process can be completed in approximately three weeks, according to DOL officials.

Employers whose applications are audited and/or reviewed must submit documentation that verifies the information included in the application. The DOL will then either certify or deny the application, or request supervised recruitment. Employers whose applications are denied will be given the opportunity to appeal the decision.

The proposal will not take effect until after the DOL receives and incorporates public comments. Written comments may be submitted to the DOL up to July 5, 2002.