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Review of Responses
DOL guidelines require that all potentially qualified applicants who surface as a result of the State Job Bank posting or the advertising campaign be reviewed in a timely manner by the employer. We recommend that employers contact applicants, if they appear to meet minimum requirements, within two weeks of receipt of resume. In addition, the employer must retain the resumes of all persons responding to the job posting together with reasons for rejecting those persons for the position. In the event of an audit by DOL, that information may be part of the documentation requested. Only "lawful job-related reasons" may be relied on to reject U.S. workers applying for the job opportunity.
When the applicant's resume shows that he or she could not possibly possess the employer's minimum requirements for the position, no interview need be conducted. An employer who rejects an applicant without an interview, however, must be able to justify the rejection of the applicant on the basis that the applicant does not meet its minimum requirements.
On the other hand, when the resume merely does not contain, with absolute certainty, the needed information to determine whether the applicant meets the stated requirements, further steps should be taken to inquire further with the candidate through interview. An employer must be careful in determining the appropriate dividing line between an ambiguous resume and one that shows that the applicant is unqualified.
The phone screen could either be used to verify that the applicant does not meet the minimum requirements, if at all unsure (this could be, for instance, if one cannot tell by the resume whether or not the applicant is authorized to work in the U.S.; a simple follow-up email could clarify this question), or, for resumes that show higher qualifications, the phone screen should be used to ascertain whether or not the applicant could be qualified. If the applicant appears qualified, a more in-depth phone or in-person interview is
needed.
It is of course impermissible to tell a job applicant that the position is already filled by the alien, since the purpose of the recruitment is to locate U.S. workers to fill the position. However, it is permissible to tell a job applicant that no decision will be made until a date coinciding with the closing of the thirty-day job order period. If the applicant does not pursue the opportunity or is no longer available at the end of the thirty-day period, he or she will not be considered as an "available" U.S. worker.
The employer should keep notes on each telephone conversation and interview with a job applicant, as an issue of fact may later arise over what was said to the applicant, and whether the applicant was rejected for lawful reasons
The most acceptable reason for rejecting a job applicant is that the applicant's training and experience does not match the minimum requirements specified by the employer. Other permissible factors that can lead to rejection of an applicant are the poor health of the applicant if the health situation would affect job performance or reliability, poor work references or references that cannot be checked, and the applicant's lack of proficiency in the English language. Further review of employment and disability law with corporate counsel is also recommended in some situations.
When an applicant is rejected for one of the above reasons, the employer must state specifically the basis for the rejection. When submitting its report of recruitment results in the “Recruitment Report” at the time of filing, the employer will summarize its reasons for disqualifying all candidates.
Filing an Application for Labor Certification
The new procedure for filing Applications for Labor Certification electronically, in place as of 2005, is known as the PERM program (Program Electronic Review Management). The goal of the PERM program is to provide more expeditious and consistent handling of LC applications throughout the U.S. The final forms, called the ETA 9089 forms, include information about the employer and the job offered, the dates that each recruitment effort was conducted, information about the employee and how the employee qualified for the position at the time he or she was hired, and finally, information about the employee’s past work experience.
Since the application is submitted electronically, the form is in attestation form. No documentation will be sent with the Application. Instead, documentation of the unsuccessful recruiting effort must be compiled and maintained by the employer and made available to DOL upon written request or in the event of a DOL audit.
With these measures we are prepared in the event that DOL requests this backup information if the case is chosen for an audit. Audit responses must be submitted to DOL within 30 days after we receive the notification. The employer is then required to submit all backup documentation collected throughout the case to DOL. It is impossible to predict, in most cases, which cases will be chosen for an audit. While most audits are random, some audit requests may outline specific reasons for having chosen that particular application.
DOL
Processing Times
DOL processing times for these cases vary greatly and we will be happy to speak with you regarding the most recent trends at the time we file your case. Processing can take anywhere from a few weeks to six months or longer. If additional information is requested or an audit is conducted, processing times may go well beyond this estimate, as there is no provision in the regulations for response times required by DOL.
Costs Incurred in the Labor Certification Process
Under current law, the employer MUST bear all such expenses, including any legal fees incurred, related to the Application process. Other costs typically are limited to advertising expenses, and in some cases the cost of a private wage survey. The alien beneficiary cannot voluntarily assume or be required to pay such costs.
Summary
The ability to obtain a Labor Certification may be critical to an employer seeking to obtain or continue the services of a qualified alien employee, as well as to the alien beneficiary seeking to remain permanently in the U.S. Detailed procedures exist which must be carefully observed in order to accomplish this result. Interested employers should not be deterred by what may at first glance seem to be a bewildering array of obstacles, but should realistically assess the prospects for a successful resolution by seeking competent guidance.
We cannot guarantee that any Labor Certification application will be successful. Moreover, even if Labor Certification is obtained, other circumstances, including the passage of time, changes in the employment situation, or changes in the law, may make it impossible for the applicant to achieve his ultimate goal of obtaining Lawful Permanent Resident status.
Additional Steps After Labor Certification Approval
Once an application for labor certification has been approved, there are two additional steps required in order for an individual to obtain lawful permanent resident status; an I-140 immigrant visa petition is filed on their behalf by the employer, and, in some cases, the individual may file for adjustment of status (I-485), which is essentially the application for green card. There is an option for obtaining lawful permanent resident through consular processing abroad. Family members may also file their applications for adjustment of status along with the principal applicant, assuming that they are eligible to do so.
I-140 Immigrant Visa Petition:
Once we have received an approved Labor Certification, the company can file the I-140 petition on behalf of the employee. It must be filed within 180 days of Labor Certification approval. It typically takes around 4 to 6 months for the I-140 to be adjudicated, but processing times may change without notice. This step can be expedited (“premium processed”) for a 15-day turnaround for an additional fee to the government. We usually do not recommend this unless an H-1B extension, if needed, would be approved for three years instead of one beyond the six year limitation, if the I-140 were to be approved prior to filing the extension request.
I-485/Adjustment of Status: Once the employee has an approved Labor Certification, some individuals may be able to file their I-485 application for adjustment of status along with the employer’s I-140 immigrant petition filing. This is possible as long as a visa number is available for the employee’s country of nationality and the employee’s employment classification (E3/E2). If the employee is not immediately eligible to file his/her I-485 along with the I-140, he/she may submit the I-485 as soon as visa numbers become available. The employee can find out when his/her priority date will become current by going to this website:
www.travel.state.gov. Go to the “Visas” tab and look under “Visa Bulletin”. Note that these dates fluctuate from month-to-month, as visa numbers are always changing.
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