The processing time for obtaining a labor certification approval varies greatly from region to region, with some regions approving them in less than 6 months and other regions taking more than 3 years. (For an update on the current processing times please check http://www.chugh.com/immigrationservice.htm). The labor certification is only the first step in obtaining permanent residency in the United States for most professionals as U.S. employer seeks a Labor Certificate from the U.S. Department of Labor (DOL) based on the non-availability of a U.S. worker.

Under the current policy of the DOL, a labor certification is to be filed in the region where the permanent job is located. However for a large number of software consulting companies, whose employees travel from job site to job site, there in no permanent location, the DOL has advised that the appropriate region for filing labor certifications for the traveling employee is at the corporate headquarters of the of the employer or a regional office.

This difference in the processing times has provided enticement to a lot of companies to set up “business offices” in areas where the processing time is faster. The promise for faster approvals for the applications for alien employment certification or labor certifications and an express route to the ultimate goal of attaining the “Green Card” to the skilled labors is almost becoming a business selling point in attracting and retaining skilled workers. It is almost akin to the various recruiting devises and employment incentives like higher salaries, better facilities, stock options etc. offered to the employees in the Internet economic boom. The DOL is referring to this tactic used by the Employers as “Forum Shopping” and recently the regional offices have expressed their concern over such iniquitous practices adopted by the employees.

The Department of Labor (“DOL”) and also the State workforce Agencies (“SWA”) in regions like Delaware, Boston, New Hampshire, South Dakota, Iowa etc. have expressed their concern over the “unexpected” and “disproportionately” large number of filings of Labor Applications at their offices by companies, who do not actually exist or work from those states. DOL has either initiated inquiries or are in the process of initiating inquiries into the filings from such companies. They have also issued “Notice of Findings” for many cases and the companies in such cases have had to either withdraw the pending petitions or face denial of the pending applications.

The DOL and SWA on inquiry have found that several out of state companies are operating from one common address which if physically inspected are nothing more than an attempt to set up of a facade for an office with few chairs and tables. Most often no personnel is operating from the office site and not even the most common business fixtures like phones, faxes, office stationery, computers and so on are present in these offices. In order to establish a bonafide business in the area, some of the employers are even running payrolls for their employees from these locations, who actually are neither living nor working from the said state. Most of the time the employers/company’s adhering to such deceitful practices of forum shopping, attempt to establish the pretense of business in the states with faster processing times for the labor applications. They believe that having a valid lease agreement for a location, some telephone bills, in some cases, running of payroll from those locations, filing taxes etc is enough to establish business relations in the state. Most often these filings are for consulting employments requiring travel as part of the job.

The maintenance of minimum business relations with a state, in order to take advantage of it’s faster processing times, seems to have stemmed from the long standing DOL advisory letter and practice of allowing labor certifications of traveling employees to be filed at a company’s headquarters or main branch/regional office. The letter does not explain in detail the terms headquarters or regional offices. Hence taking advantage of this loophole, many companies have started establishing the so-called branch/regional offices or headquarters in states showing faster processing times for labor applications. But in reality these offices do not serve as either the source of any revenue, business or any other employment opportunity except as a gimmick to lure skilled labor and take advantage o the faster processing dates. The regulations and DOL practices allow the employers to file for labor applications for alien employees from either their corporate headquarters or regional/Branch offices i.e. from where they are actually controlling their business and the employee or from the place where the alien is actually physically present and working. The Job offer from any of these places should be existent or may have definite reasonable possibility of being present in future. It should be substantiated by the regular business practices and not merely parodying the same.

The DOL is now taking steps to ensure that such sham business offices are not used to abuse the process of labor certification and are investigating into such practices. It is true that the DOL has long accepted the loose interpretation of the term “headquarters” and have approved in the past labor applications filed out of such offices. Some of the advocates for the loosely interpreted terms of “headquarters and branch offices” may argue that the headquarters rule is a matter of policy and practice and the change in the DOL policy to now accept their cases when they have invested time, money and efforts based on DOL’s past policies is wholly arbitrary and not fair. However it should be remembered that the regulations require that the job offer as mentioned on the ETA forms for the application for Labor Certification be genuine and bonafide. Offer of a job at places and offices, which the employer knows to be non-existent, cannot be considered bonafide. They are nothing more than a ploy to knowingly commit a fraud on the system.

A Labor Certification is a complicated procedure and as the current processing procedures suggests a lengthy procedure some times. It is very important that before filing such applications, the employer should consult with an experienced immigration attorney who can explain to them the policies of the DOL, as applicable to their case. The blind following in the rat race to the faster processing may not be the best course for the companies who may be faced denials at later stage. It may be pertinent to mention that under the regulations after denial of a Labor Application, new application for labor certification by the same employer involving the same occupation cannot be filed till the expiration of 6 months from the date of a denial of certification by the Certifying Officer.

Also not to mention that the later denials or queries may have a very serious impact and jeopardize the non immigrant status of those employees who have been granted the Seventh Year Extensions of the H-1B visa under AC 21 regulations, based on the pending Labor application for more than 365 days.
In conclusion, I would recommend that the DOL guidelines and the effects thereof should be considered before one decides to file application for labor certification. The employers should remember that a “penny wise and pound foolish” approach of adhering to the “Forum Shopping” may not be the best business tactics to get the best qualified alien employees in the long run.