In the past labor certification applicant can only apply through the “regular” procedure under which the applicant files the application first, and then undertake recruitment under the supervision of SESA (State Employment Security Agency)of the various states to prove the unavailability of U.S. workers. Due to the budget cut of the SESAs and the numbers of cases filed in the past years, almost all states have experienced tremendous backlog of regular labor certification processing. In some states, the applicants may have to wait up to three years to start the supervised recruitment.

On October 1, 1996, a GAL (General Administrative Letter)1-97 from Depart of Labor took effect. Under GAL 1-97, Reduction of Recruitment (RIR) is encouraged to increase efficiency for the labor certification processing. Under RIR, an employer may request for reduction in recruitment for labor certification application if the employer can show that an adequate test of the labor market has occurred at prevailing wages and working conditions through source normal to the occupation and industry within the previous 6 months. Unlike the regular labor certification cases, an RIR case can be immediately reviewed by the SESA officers and hence avoid the long waiting line. In other words, if the employer can show a continuous recruitment effort for six month, the employer can file the labor certification application, the application can be immediately processed, and hence obtain the labor certification much faster than cases filed under the regular system.

For labor certification application, the employer of the alien must provide detailed description about the employment, including the education, experience, and special skills that would be required to perform the specific work. The employer must prove that it has not previously hired workers with less education, training or skills for the position.

On the other hand, the minimum requirement for the proposed employment must not be restrictive. In other words, they cannot exceed the requirements set forth in the Specific Vocational Preparation code. The Department of Labor will not issue a labor certification if it finds that the minimum requirements for the job is “unduly restrictive”, which is defined as a “demand not normally required to satisfactorily perform the work in the occupation.” Restrictive requirements include foreign language proficiency, combination of job duties, knowledge or skill not obtainable in the U.S., experience in excess of the SVP code, and college-level or university-level education for non-professional technical jobs.

A. Requirement Under Regular Application

To determine whether a U.S. worker who meets the employer’s minimum requirements for a specific position exists, the employer is required to prove that it has made proper recruiting efforts. Such efforts consist of:

1. A thirty-day Job Order in the State Employment Security Agency’s (“SESA”) computerized Job Bank;
2. A notification to the employee’s bargaining unit at the place of intended employment or, in the absence of such a bargaining unit, a ten day on-site posting of the position vacancy;
3. Placement of an advertisement for the position vacancy in a local newspaper of general circulation for three consecutive days (often inclusive of a Sunday) or a one-time ad in an industry-appropriate professional magazine or trade journal.

B. Recruitment Under RIR

To make the procedure more efficient, reduction in recruitment requests (RIRs) are permitted if the employer makes a written request showing that a proposed employment:

1. Demonstrated slight availability or no availability;
2. Contains no restrictive requirements;
3. Meets the prevailing wage;
4. For which the employer could show adequate recruitment, within the preceding six months, via sources normal to the occupation and industry.

C. Identified Job Applicants

All U.S. workers who apply for the job must be considered by the employer. If any applicant’s resume shows that he or she may meet the stated minimum requirements, the employer must make a good faith effort to contact the potential candidate, and arrange an interview either in person or by telephone.

D. Report of Recruitment Result

The employer shall submit a written report regarding the recruitment result upon the close of the 30-day recruitment period, or in RIR situation, upon closing of adequate recruitment efforts. This report must be provided within forty-five days of SESA’s request in regular processing. Failure to do so will result in the loss of the previously established priority date.

After receiving the application, SESAs will review the recruitment documents submitted by the employer and assembles a complete document package for adjudication by Department of Labor. Department of Labor then will make a decision as whether to issue the labor certification or not. If a “Notice of Findings” (NOF) is issued to the employer, it is the intention of Department of Labor to deny certification. In such a case, the employer has thirty-five days to respond or to rebut the issues stated in the NOF.

If a labor certification application is denied, unless the denial is based solely on wage issue, the employer cannot file a new application for the same position until six months after the date of denial.

For such a denial employer can file appeals for review. Appeal of a denial must be made to the Board of Alien Labor Certification Appeal within thirty-five days of receipt of the denial. Only the employer can make such an appeal. Moreover, once an appeal is taken a new application cannot be filed until the appeal is decided. The processing time for such an appeal, however, can be very long. It sometimes ranges for over 20 months.

Once the labor certification is received, the applicant can then filed I-140, and then I-485 to INS for permanent residency application. If the alien is in foreign country, the alien can be processed by the U.S. consulate for permanent residency interview. The applicant can also apply for working permit and advance parole if he is in the U.S. As such, the applicant will not have to main his previous status, like H-1 or O-1, once he is in this stage of application if he receives the working permit from INS. He will also be free for traveling if he receives the advance parole from INS.