Fast and Furious

Changes to the immigration system are coming fast and furious from the new Trump Administration. I have just complete an online form noting my availability to provide in-person assistance at “credible fear” interviews for refugees who may be turned away at a New York area airport despite having been issued proper documents before take-off (!) This afternoon, after the dentist, there is an Emergency Rally for Muslim and Immigrant Rights. That’s how fast the action is.

Somehow, I now have a different view of the stilted existing edifice of immigration law and procedure. Whereas before I felt disgusted with some aspects of it, I now view it – at worst – only with a jaundiced eye. Administrators, both nationally and certainly in New York, have succeeded in producing a system that works much better than the one I knew when I began practicing in the late 1970’s.

Still, my long experience with the labor certification process tells me this is a topic ripe for improvement. I back off from my to-the-ramparts approach of the last time I wrote about this topic, when the Obama Administration was young (see here). But some aspects of labor certification seem likely not to survive the Trump Administration. I look forward to working to see that the replacement is an improvement and not just a change.

The current labor certification process offends both American employers and American workers. Below I describe the problem and suggest a remedy that does not require a new statute.

To protect the wages and work-lives of American workers from newcomers, the Immigration and Nationality Act of 1952, As Amended, states that a person coming to the United States to perform labor is inadmissible unless the Secretary of Labor has certified (1) there are not sufficient workers to perform the labor and (2) the person’s employment will have no adverse effect upon similarly employed workers’ wages and working conditions.

(Put to one side the statute’s premise that newcomers must not be allowed to cause disruption. Historically that is the benefit of new blood. But this is a topic for another time.)

Upon its narrow statutory directive to protect American workers, the Department of Labor has built a bureaucracy that is, at its core, shameful bordering on fraudulent. Individual officers charged with implementing the rules do their best under the circumstances. But Labor Department rules (20 C.F.R. § 656.1 et seq.) require individual employers to make “good faith” efforts to identify American alternatives for the worker whom they would like to hire.

An utterly unfair official process follows. American employers seeking to fill a position with the best candidate must participate in what is essentially a government-sponsored charade. American job-seekers are blindsided by so-called recruitment campaigns. These “recruitment efforts” require American employers to run expensive print advertisements in the newspaper that advertise openings no reader will ever fill.

Under this system, unsuspecting American candidates who respond to the recruitment campaign are, one-by-one, disqualified for the position. Skilled immigration attorneys counsel employers in how to frame job requirements, phrase questions and review resumes and references that will result in the desired outcome. No employer should have to play this game with or without an attorney, and no attorney should become an expert at it. No American worker should be its victim.

A frustrated Labor Department sometimes lashes out at employers or their attorneys or both, alleging a built-in bias that affects the idealized “good-faith recruitment” it wants employers to conduct. In fact, it is the Labor Department’s own regulatory requirement for the employer to behave as if it had not already identified a suitable candidate for a given position that makes a “good faith” effort by the employer inherently implausible. Talent is the heart of the employer’s business. The American worker should not have to suffer through the process as collateral damage from a government-mandated program that seeks to separate the American employer from a prize employee.

The fundamental problem with the current labor certification process is that implementing immigration policy is not the American employer’s job. Since the late 1970’s the labor certification regulatory system has remained conceptually the same: It is up to the employer to prove that it really and truly cannot find a suitable American worker. The employer does this by obtaining and furnishing evidence from the labor market.

But prior to the late 1970’s, under the same statute, the Secretary of Labor made the required certification without contracting the job out to the employer. The Department of Labor simply relied upon states’ labor department statistics about shortage occupations. The statistics were updated every 90 days. The Department of Labor – properly using taxpayer money to meet a government objective – relied upon its own statistics about wage levels.

Thus existing, generally accepted statistics made it readily apparent if workers were available to perform particular labor. State labor departments referred available workers to employers. Where they could not, the Secretary of Labor issued the certification in a matter of weeks.

Compared to the current convoluted system, the earlier system was much more faithful to the statute’s basic directive. The Trump Administration should return to a similar system now, divorcing from the statute’s labor certification requirement any concept of the employers’ “good faith” recruitment and the entire, misguided superstructure of regulation that rests upon it.

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