AILA's Survey of Labor Certification Practices, U.S. Immigration, Law Offices of Carl Shusterman

Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
*REGIONAL PROCESSING TIMES*
LCA (non fax back)	Current		11/09/00	10/26/00	Current-Denver 5 days- Dallas	7 days	10/2000	7 days	11/3/00
Limited review	Current		9/2000	5/11/00		Current	8/2000	2 weeks	Within 30-40 days
RIR	Current	6/2000	9/2000	9/8/00	8/15/00-Dallas 8/00-Denver	10/1/2000	9/2000	2 weeks	11/6/00
Non -RIR Permanent	2/99	6/2000	10/2000	10/28/99	9/99-Dallas 8/99- Denver	6/1/99 (but not many 99 cases left)	3/2000	Depending on RIR caseload due to priority on RIR cases. Generally current.	2/9/98
H - 2B	Current		9/2000	current	Within 10 days of receipt- Dallas/Denver	7-14 days	8/2000	Current	Unknown
Typical time for NOF, as well as time for FD after rebuttal?	NOFs being issued for 2/99 backlogs. FD issued not more than 3 weeks from due date of rebuttal..		NOF issued 2-4 weeks following receipt. FD will vary with case and analyst. Recommended time is 20 days after rebuttal.	NOF�s when issued and response sent are handled within a month or so. Sometimes have to follow up to move it along.	NOF is last priority and is set aside until all is done.	NOF issued in cases as they are worked. Usually, decision within 2 weeks upon response to NOF. If you have not heard in 3 weeks, email CO at fgoodman@ doleta.gov	Cases with deficiencies have been put aside. Typically NOF written at time of review. FD within 30 days of rebuttal.	Due to staff shortages, a case with problems has to wait until the RIR caseload goes down. Ideally, one month is enough time for a NOF and one month for a FD, but there must be an ebb in RIR caseload.	No reported NOF problems.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
POLICY AND PROCEDURE
What occupations do you recommend for filing RIR in your Region?	Anything where employer can document shortage and prior recruitment. Show that employer did good faith effort and attempted to find US workers within 6 months of filing.	All shortage occupations, which has been expanded to include chemical engineers.	Automobile mechanics and body repairers, computer professionals, construction occupations (skilled), chefs & cooks (not pizza or fast food), furniture upholsters, hairstylists, house workers, jewelers, landscape gardeners, janitorial supervisors, travel agency managers, oriental rug repairers, pharmacists, secretaries & tailors plus occupations with fully supportable foreign language requirement.	Any occupation, except schedule B, but high tech jobs are most popular. If it is non-IT position provide more recruitment.	All	RIR is okay for any occupation - but IT cases and physicians move quickly.	All occupations not subject to Schedule A or the Special Handling procedures. Region V encourages all employers to utilize RIR procedures.	High tech and specialty cooks.	Any occupation, without restriction.
Is your region encouraging RIR filings for all occupations, whether or not there has been availability of US workers for the position, historically? What form is this encouragement taking?	Encouraged for all occupations, except Schedule B.		We wouldn�t encourage filing an RIR in an occupation where there is usually availability of workers. Others, yes. Approximately 70% of our cases are filed as RIRs. Most are approved.	Yes	Yes.	Our Region knows there is a shortage in all kinds of specialized areas - from computer programmers to seamstresses.	CO has encouraged the submission of RIR applications for all occupations. There is no discrimination against occupations which have not been historically shortage occupations. Schedule B occupations will not qualify.	The region encourages RIR filings for all occupations due to delays in processing at some state levels.	Any occupation is able to take advantage of RIR if the recruitment is done.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
How many advertisements is your region requiring for RIR cases? In what types of publications? Are there differences between types of ads (and number) required for typical �shortage� occupations and other types of occupations?	No set rule. Its loose so that we can document to DOL the many ways that have been attempted to fill the job. Employer should provide sufficient documentation to show good faith. The stronger the better.	For shortage occupations 1 print ad will do. For specialty cooks, the std. 3 days of ads are required. For positions with availability, 4 ads required.	There is no magic formula. For shortage occupations like �computer professionals,� one ad is acceptable. For other occupations, the employer has a bigger evidentiary burden. These have to be supported by several ads (more than 2 or 3) over a period of time. Print advertising in a publication suitable to the occupation is a must and suggested publications are listed in our Regional advertising instructions, found in attachment to Regional Field Memo, ACU No. 2-96, dated April 15, 1996. For positions requiring travel with potential for placement anywhere in the US, we advise advertising in a national publication.	1 print ad for IT occupation, but with non-IT positions recommend 2-4 over 6 month window. Minnesota SESA (MDES) requires at least 2 print ads and another recruitment source for all jobs, except computer related positions, which need only one print ad usually with other recruitment evidence. Michigan reports at least 2 ads and 3 forms of recruitment.	Case specific. In IT cases, one ad and other types of evidence.	There is no set number of ads but there should be at least one print ad and ads should not be blind. The number, type and placement depend on the type of occupation.	Kansas SESA requires at least 2 print ads for non-computer occupations. One print ad for computer occupations. Ads can be in either local newspaper or national journals. There must be one additional source to print ads such as internet job sites or employer�s home page, job fairs, college recruitment, headhunters, etc. Must show recruitment in different months, but Kansas SESA has not said that you must recruit all 6 months. According to one officer, �We do not want to see all recruitment five minutes before application is submitted.�	A minimum of one print ad is required plus a showing of a pattern of recruitment. This means that one print ad may be enough if combined with other forms of recruitment that establishes a pattern consistent for the region and the industry (e.g. Internet, on campus, etc.).	There have been unique, reported cases of only one or two ads, but on average, 4 ads over a six month period or more are what seems to be required. DOL refuses to state a number. . Proof of full six months recruitment is required, e.g. 1^st and 6^th month need to be documented. Only ads specifically identifying the job sites are acceptable. Large, national ads of large companies are not acceptable unless the ad specifically mentions the job site, which could be a problem for major corporations with national recruitment efforts and multiple sites.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
Are there any serious inconsistencies between RIR processing in your Region and across the country?	No		Perhaps �yes� on the basis of anecdotal evidence. However, there is no real factual basis for an answer.	No, except that MDES conducts a substantive review of the application.	No	No	Serious inconsistencies between RIRs filed in Kansas and Missouri. Missouri has been generally able to do intake and review and forward in a reasonably short time. Kansas SESA is very backlogged due to under staffing and under mandate to give priority to aviation industry occupations. When Kansas SESA receives large number of H- 2B applications, backlog even more severe.	No	Refusals to accept national ads without mentioning the specific site, and insisting that ads have fax or street address, but not willing to accept an email contact.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
Please provide any particular recommendations for RIR processing for your Region.	Document prior recruitment.	Supply other evidence of a pattern, such as internet recruiting, etc.	1) Do not over document obvious shortage occupation case, 2) Send properly completed and signed ETAs -750s(back to back) with G-28, 3) Submit properly posted Notice of Filing, 4) Send evidence of recruitment suitable to the position; eg. professional jobs with advanced degrees should appear in a professional journal, 5) Do not send multiple ads for shortage occupations, 6) For professional occupations that are not considered shortage, submit evidence of other recruitment such as college recruitment, job fairs, headhunters. Internet advertising helpful but will not suffice without a print ad, and 7) Proof of publication must conform to accepted practices, i.e. copy of the tear sheet or proof of publication from paper.	Do not send recruitment activity which is older than 6 months. Provide tearsheets or proof from the publication (not ad agency). Insertion orders from ad agency not sufficient. MDES provides list for guidance, which can be obtained by calling 651- 296-2949 and is also available on their website through MDES at www.mnworkforce center.org/alc/		Our Region requires at least one print ad as well as non-blind ads. It dosen�t require six months worth of recruitment - only recruitment within the last six months	See above. Also, see MDES checklist.	Follow guidance sent out by SESAs.	Document full 6 months of recruitment. Keep job requirements to a minimum, package the case as requested by EDD.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
Is your Region encouraging compliance with GAL 2-98 and the Q&A on prevailing wage contained in GAL 1-2000? Are there any specific problems using private surveys for establishing prevailing wage in your region?	A separate office is handling prevailing wage issues.		Yes. We do not have a problem with the use of private surveys.	MDES is accepting private surveys, if large enough in scope.		There is no problem with private surveys as long as they meet GAL requirements. Generally, SESAs review these before they are sent to the Certifying Officer.	Surveys must be in compliance with GAL2-98 and GAL 1-2000.	Region encourages use of outside surveys so long as they are in compliance with GAL 2-98 and Q&A in GAL 1-2000.	EDD will not accept a wage request with private surveys. We are forced to first ask for the wage as determined by SESA, then file a rebuttal if we disagree, which is in contradiction to the GAL 1-2000. This has been discussed, repeatedly, but no progress has been made. We have found that if we get LMID�s approval of the alternative survey and submit the wage approval to EDD, then an alternative wage is acceptable.
If your region has any private surveys it routinely accepts for prevailing wage purposes, please provide the names.	No. It is routinely up to the employer and the prevailing wage expert. It goes to the prevailing wage expert to accept the survey or not.		HRA Compensation survey report, Watson Wyatt survey, ERI, William Mercer, Bradford Benchmark, Engineers & Scientists Salary Survey, Dietrich, BLS, Chronicle of Higher Education and AIA.	Watson Wyatt, William Mercer.	Depends on nature of survey. Watson Wyatt often accepted but not always.	No survey has been excluded if it meets the requirement.	Kansas City office has not provided acceptable list of surveys and will not. Prevailing wage specialist for Missouri, Holly Harber, is very knowledgeable and if asked, will talk about survey requirements, if you have questions about an existing or want to know whether proposed survey will be acceptable.	Region unwilling to provide a list of surveys, as surveys are sometimes internally inconsistent with their methodologies on particular job categories.	AEA, Radford, Watson Wyatt as well as speciality surveys for ski instructors and sheepherders.
How does one challenge a finding of availability in your region?	With documentation		Establish that applicant is either unqualified or unavailable for the position. Worker is qualified if he/she can acquire skills necessary to perform duties during a reasonable period of on the job training.	Challenge can be done informally through the MDES office, through submission of a private survey or argument that a different classification should be applied.	Case specific.	Follow the regs.	Kansas City office may question availability if job bank contains qualified applicants for a particular occupation. If this occurs, the employer would be asked to contact an/or interview applicants.	No denials have been issued based upon availability.	This issue has not come up in RIR cases.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
How does your region view experience with the same employer, pursuant to Matter of Delitizer, for an RIR?	Same as a regular case. Document using Delitizer rule. This is a minimum requirement issue, not an RIR issue.		We closely scrutinize all qualifying experience gained by the alien with prospective employer.	Cases are considered individually, but experience with the same employer will be considered. It won�t be accepted if in the same or similar position.		If you document that it is a different job, it should be okay.	Region looks at differences between the jobs. Must include a very clear comparison of duties and responsibilities, showing all differences between the jobs. It is helpful if jobs are in different occupational classifications, but it is not fatal if jobs are in same occupational classification, but at different levels. Certifying officer has stressed that it is a very fact-specific analysis and determination, so it is important to include as much information as possible on both jobs.	Region takes conservative view. SESA requires strong showing that positions are substantially dissimilar and are not part of ordinary progression. Employment overseas or at different physical locations(out of state) may be more likely to be considered to be a different position.	Unacceptable, absent a full NOF and rebuttal and proof of a different, completely different job. Essentially, the positions have to be substantially dissimilar.
Is your Region still receptive to the special handling cases for college/university?	Yes. Flag it for expedited processing as it is in the regulations.		Yes.	Yes, and they are done quickly - as little as 30-45 days from SESA to approval by Region.	Yes.	Yes.	Yes. Kansas city office recently established a separate track for Special Handling applications, similar to the method currently in use in the Chicago office. Before Special Handling applications were being processed with the non-RIR cases-very slowly.	Yes.	Yes.
Questions	New York	Boston	Philadelphia	Chicago	Dallas/ Denver	Atlanta	Missouri	Seattle	California
What, if any, efforts has your Regional office undertaken to relieve its non- RIR labor certification backlog?	We spend part of the month working on the backlog and then later in the month on RIR. Part of each month is spent focusing on the backlog.		We have no backlog of RIR or non-RIRs. Our SESAs made great strides in reducing backlogs this year.	Region V has been concentrating on RIR and LR. Standard backlog is now a year, but should start moving forward slowly on those cases. The state legislature in Minnesota has allocated funds if matched by employer contributions to expedite cases(this has not been successful). Regular application from September are currently being reviewed, and there are only 15 regular cases pending in the local office.	There has been additional staffing/funding.	Region is working on those cases on FIFO basis, and assigning weekend overtime.	Kansas city office is understaffed and overworked, but some progress has been made backlog RIR cases, which got worse during late 1999 and early 2000 when Charles Mooney left the office and the illnesses of experienced staff and/or their family members. Kansas City office has begun attacking the backlog by (1)training other staff outside of the unit to review cases(2) implementing overtime, and (3) bundling cases by employer to speed review.	Not much of an issue in the state of Washington.	With the exception of backlogged traditional cases going back to 1996, current RIR processing is about 30 days overall, technology jobs with no recruitment problems are given Limited Review and processed as an RIR at the Region, but all other cases are just piling up and there seems to be little relief in sight.

SESA REPORTING FOR	PREVAILING WAGE REQUEST (SESA RECEIPT DATE)	INITIAL INSTRUCTIONS IN NON-RIR (SESA RECEIPT DATE)	FORWARDING OF RIR CASES TO REGION (SESA RECEIPT DATE)
Alabama	1-2 weeks	6/98	2-3 months
Alaska	1 week	1-2 weeks	1-2 weeks
California	About 10 days	About 40 days	About 10 days
Georgia	1 week	1/99	7/99
Idaho	1 week	3 months	2 weeks
Illinois	1-10 days	11/30/98	10/30/98
Kansas	Within 14 working days	10/99	Late 2/2000 to 3/2000
Kentucky	2 weeks	2 weeks	2 weeks
Maryland	11/1/00	9/00	9/00
Massachusetts	2-3 weeks	10/19/00	10/19/00
Michigan	1 day	9months -1 year	6-8 months
Minnesota	3 days	Current	5/26/00
Missouri/Kansas City	10/ 9/00	7/8 2000	8/ 2000
Missouri/St. Louis	10/9/00	8/1/00	9/1/00
New York	Not done by SESA any longer	1/98	6 months
New Jersey	Within 2 weeks	1/17/98	8/ 2000
North Carolina	3-5 days	12/99	10/00
Ohio	10 days	Current	Current
Oregon	3 days	2 weeks	1-2 weeks
South Carolina	2-3 weeks	5 months	2 months
Utah	9/5/00	Current	current
Virginia: Richmond Tidewater All other areas incl NoVA		8/2000 current 10/2000 ( approx 1 month processing time)	mid - 9/2000 current 11/2000 (approx 2 weeks processing time)
Washington DC	1-2 days	5/25/00	1-2 days after receipt of recruitment results.
Washington	Unavailable	None since 2/98	8/2000