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GOVERNMENT INVESTIGATION OF YOUR LABOR CERTIFICATION CASE
by Michael J. Gurfinkel, Esq.
With Labor Certification cases,
there are many "behind the scenes" investigations taken
by the Employment Development Department, U.S. Department of Labor,
and/or the Immigration and Naturalization Service, to make sure
that all the steps and procedures are being properly followed
by the alien worker and the employer. It is, therefore, important
that you have a reputable attorney assist you every step of the
way.
Follow-up Questionnaires:
Part of the Labor Certification
Process involves recruitment of potentially qualified U.S. workers.
An advertisement is placed in a designated newspaper, and U.S.
workers respond to the ad by sending their resumes to the Employment
Development Department (EDD). The EDD then forwards the resumes
to the employer (usually through the attorney's office), and the
employer must immediately contact the U.S. workers. The employer
must interview and assess the applicants' qualifications, and
report the results of the recruitment process to the EDD.
However, the Employment Development
Department and the Department of Labor are concerned that, sometimes,
the employer and/or the alien may not follow all of the required
steps and procedures. They are concerned that the employer may
try to skip certain steps and cut corners. The Government wants
to make sure that the employer did, in fact, contact and interview
the U.S. workers, instead of simply "making up stories"
about non-existent interviews, or providing a version of the interview
of U.S. workers that did not really occur.
For that reason, when the resumes
of U.S. workers are first received, the Employment Development
Department lists the U.S. workers' names and addresses. After
the employer submits the recruitment report, the Employment Development
Department may send a letter or questionnaire to all the U.S.
workers who responded to the advertisement, asking for their
version of the interview. If the U.S. worker's version of events
differs from that of the employer's, the U.S. worker's version
will be given much more weight.
Among the questions that the EDD
may ask of U.S. workers are:
-- How was the U.S. worker
contacted? (i.e. by mail, phone, etc., or whether
or not the U.S. worker was even contacted at all.) Sometimes the
employer may not even bother to contact a U.S. worker, and instead
claim that the U.S. worker was "not interested" in the
job.
-- How was the U.S. worker
interviewed? (i.e. in person, by telephone, or whether
they were even interviewed by the employer.)
-- Date of interview.
-- Name of person who interviewed
them. (It is important that the alien and the alien's
attorney not conduct the job interview. If the alien or
the attorney is involved with the interview process, the Labor
Certification Application will be denied.)
-- Whether the wages and job
duties that were discussed during the interview matched those
that were advertised by the employer in the newspaper.
Verifying Your Work Experience:
Another requirement of the Labor
Certification Process is that the alien worker being sponsored
(or petitioned) must have the minimum experience or qualifications
listed on the Labor Certification Application. If your qualifications
or experience for the job are based on previous employment, the
Government wants you to fully document that prior experience.
Usually, this is done by way of a letter on your previous employer's
letterhead, which is dated, with the name and position of the
person providing your employment verification. The employment
verification must also state your job title at the time, your
duties, beginning and ending dates of employment, and average
number of hours worked per week.
In addition, the INS may contact
your prior employer to verify your work experience (to make sure
you didn't just type your own version of your work experience
on "borrowed" stationery), or obtain payroll records
or other documentation to verify your work experience.
Verifying True Job Opening:
Many times, the Government is concerned
whether there really is a job position available for you by your
sponsoring employer. Sometimes, the Government contacts, or even
visits, the sponsoring employer's place of business and questions
the employer about the job and about you. The Government may investigate
to determine whether or not there is a legitimate, ongoing business.
(There are stories about the INS having gone to the employer's
address, only to find a vacant lot, or the alien's house.) The
employer may be asked to provide the employer's Tax I.D. Number
(so the Government can access payroll records), bank statements,
balance sheets, tax returns, etc. (to demonstrate financial stability
and that there is an ongoing business).
As you can see, there are many ways
that the Government can "catch" you or your employer,
if you try to skip steps or cut corners. That is why it is important
that you have a reputable attorney handle your case. An attorney
will make sure that it is done properly, that all requirements
are met, that your case is properly documented, and that you don't
skip or miss any necessary steps. Remember, only you
will suffer if the case is not handled properly.
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