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WHY IS MY LABOR CERTIFICATION TAKING SO LONG?
by Michael J. Gurfinkel, Esq.
Many people who filed for Labor Certification are
anxious, impatient, and frustrated over the amount of time it
is taking for their case to be approved. They think to themselves,
"I had my case filed a long time ago, and it is still pending.
I thought it would take less than two years. Isn't there a way
to expedite it?"
Unfortunately, the increased number of filings
of Labor Certification Applications have resulted in an increased
workload at the Employment Development Department (EDD) and
the U.S. Department of Labor (DOL). On top of that, there have
been budget and staff cuts at the EDD and DOL, resulting
in dramatic delays in the processing of Labor Certification Applications.
In addition, the Department of Labor has a policy that it will
not expedite any case, for any reason.
When a person's Labor Certification Application
is filed, it first goes to EDD, or, if filed outside of California,
it goes to that particular state's applicable employment agency.
The date the Labor Certification (ETA 750) is filed with the EDD
is the person's "priority date." Once filed with EDD,
the application goes through various steps and stages, such as
assessments, advertisement in a newspaper for three successive
days, recruitment, employer's interview of U.S. applicants, etc.
All these various steps of the Labor Certification process take
time.
After the "recruitment" stage (newspaper
ads and interviews of U.S. applicants) is completed, EDD then
forwards the file to the U.S. Department of Labor. DOL will then
look over or review all paperwork, and recruitment efforts, to
make sure that everything was done in compliance with applicable
laws and regulations. Unfortunately, the DOL for the region in
California is severely backlogged. Right now, the Department of
Labor is reviewing those cases that were transferred to it about
three years ago. So, if your case was transferred to the Department
of Labor only recently, then the DOL has not even looked at it,
and your case is still sitting on DOL's shelves.
Please note that the DOL does not process
its caseload based on the date your case was filed with EDD. Instead,
your case is reviewed by DOL based on the date EDD transfers
the file to DOL. Cases transferred to the DOL by EDD about
three years ago, are only now being reviewed by DOL.
Many people ask if the Department of Labor can expedite
their case because of some kind of emergency, such as their child
is turning 21 years of age, they have a deportation hearing, or
they want a green card already, etc. Unfortunately, while the
Immigration and Naturalization Service and the U.S. Embassy are,
in many cases, accommodating to people in expediting certain "emergency"
cases, the U.S. Department of Labor will not expedite any
case, under any circumstance. In fact, there was a case where
a person was in deportation proceedings, but had a Labor Certification
Application pending with the Department of Labor. He asked the
Department of Labor to expedite the processing of his Labor Certification
Application, because he was in deportation proceedings. (He hoped
that with the approved Labor Certification Application, he could
qualify for a green card, and thereby avoid deportation.) However,
the U.S. Department of Labor' reply was: "In the interest
of fairness to all applicants, applications are processed in the
order in which they are received in this office. No applications
are being expedited under any circumstance." In other
words, the Department of Labor refused to expedite the case.
I know that this information is not "good news"
to people with pending Labor Certification Applications. However,
I know that people appreciate it when they know what is going
on, and the cause for delays, etc. For all of those people with
pending Labor Certification Applications, I hope that this has
cleared up some of your frustrations and confusion. The bottom
line is: just be patient; eventually EDD and DOL will get to your
case.
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