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AILA on ETA to ESA Move for Labor Certifications

Cite as "AILA InfoNet Doc. No. 99022559 (posted Feb. 25, 1999)"

February 16, 1999

Chairman Arlen Specter
Senate Labor, Health & Human Services, Education Appropriations Subcommittee
522 Hart Senate Office Building
Washington, DC 20510

Dear Chairman Specter:

We are writing to you in your capacity as Chairman of the Senate Labor, Health & Human Services, Education Appropriations Subcommittee to express our concerns about several Department of Labor (DOL) initiatives that will impact negatively on the various alien labor certification programs administered by the Department. These programs provide access to needed foreign-national workers where a shortage of American workers can be demonstrated, and are essential to keep U.S. companies globally competitive.

We believe that the initiatives noted below not only have the potential to weaken the program severely, but do little to address real areas of concern: a lack of adequate funding, problems in program administration, and long delays in which U.S. employers now must wait three to four years in many parts of the country before applications are processed.

  • Moving the administration of labor certification programs from the Employment and Training Administration (ETA) to the Employment Standards Administration (ESA): DOL proposes in the FY 2000 budget to shift administration of all foreign labor certification programs from the ETA to the ESA. The Department alleges this shift would streamline, reengineer, and improve the alien labor certification process, and reduce the burden on employers while maintaining strong U.S. worker protections. These may be worthy goals, but they will not be achieved by this shift. In fact, this shift would change the program from one that serves employers and this country’s economy to one that is enforcement driven. We strongly oppose this shift because it would put the administration of a benefit, the certification of the application that an employer makes to bring a foreign professional or skilled worker to the workplace, into the same section of the agency charged with the punishment of the law’s violators (those employers who do not follow through on the attestations they make when seeking to hire foreign workers). While we believe that the law should be enforced and violators punished, enforcement and service are two distinct functions that, if they were to fall within the same division, would represent a clear conflict of interest. A similar conflict has plagued the Immigration and Naturalization Service, and several proposals, including the Administration’s own, have recommended separating the two functions. It seems incongruous for the Administration to support the opposite approach for DOL. We strongly urge that the program remain in the Employment and Training Administration and that, within ETA, it receive adequate funding.
  • Level and Source of Funding: There is general agreement that labor certification programs are in crisis, due partly to the lack of adequate funding. Increased funding levels are needed to allow DOL to keep up with the increased demand for, and complexity of, the services it provides. But no such funding is proposed in the FY 2000 budget. Rather, the budget includes DOL’s proposal to collect fees from employers to administer and enforce the programs and provide reemployment and training assistance "to U.S. workers who have been dislocated from their jobs." Not only is this a misuse of needed funds, but we disagree with the allegation that alien labor certification programs lead to the displacement of U.S. workers. In fact, by statute, these programs are designed to ensure that such displacement does not occur. In addition, we are concerned with the precedent that would be established in this case that fees need to be charged to enforce a program that benefits America. Enforcement funding should come from administrative and civil fines assessed against violators, not from fees paid by law-abiding employers.

We support user fees if they are reasonable, directly related to the actual costs of providing a requested benefit, and used exclusively for improvements in the processing of alien labor certification applications. We strongly oppose user fees if these funds are used for enforcement or for other initiatives outside of the direct purposes of the alien labor certification program.

  • Attestation Procedure Proposed: DOL has begun to discuss a proposal that would change the current alien labor certification programs from an up-front filing and approval process to a back-end, enforcement driven attestation process. While we have yet to see any details about how DOL plans to implement and enforce such a process, our experience with other DOL-administered attestation processes (for example in the H-1B, H-1A, and F-1 programs) leads us to believe that this procedure would result in further misuse of authority and waste of scarce resources. For example, in these other programs, DOL has: imposed on employers extensive paperwork and record-keeping requirements, and inconsistent and unrealistic burdens; provided few clear and consistent guidelines for employers to follow; and consistently evidenced a suspicious attitude toward employers. We urge you to seek clarification from DOL and oppose any procedures that would allow DOL to dictate employers’ business practices and would impact negatively on their ability to hire and retain vitally needed foreign workers.

While DOL has been focusing on the above proposals, they have not used other options open to them that would vastly improve the alien labor certification program. Such options include increasing the number of occupations designated as shortage occupations (known as schedule A occupations), expanding the use of streamlined processes based on pre-application recruitment, and recognizing current business practices in recruitment. We urge that these avenues be adopted, rather than the above initiatives.

Thank your for your attention to our concerns.

Sincerely,

Jeanne A. Butterfield
Executive Director