Department of Labor's FY2010 Annual Performance Report, outlines the future plans of the Employment and Training Administration with respect to the foreign labor certification program, which include applying stricter scrutiny to applications.

Employment and Training Administration

Statutes, regulations, and administrative requirements establish mandatory timeframes within which OFLC must process certain applications or take given actions. Each foreign labor certification program is administered under a different set of requirements according to its unique role in the labor market.

For the permanent labor certification program, 37 percent of permanent labor certification program applications were resolved within six months of the initial filing date. When compared to FY 2009, processing times improved substantially due, in large part, to the implementation of a management plan that resulted in the reduction of the backlog of pending permanent cases by approximately 50 percent from 66,885 in September 2009 to less than 35,000 cases in October 2010. As part of its FY 2011 Operating Plan, OFLC will continue backlog reduction activities designed to bring processing times in line with established FY 2011 goal of 81 percent.

A key and long standing challenge within the foreign labor certification programs has been balancing program integrity activities and the impact of those efforts on overall case processing times and the generation of case backlogs. Eligible U.S. employers will continue to have access to foreign workers when qualified domestic workers are not available. However, additional screens and analytical rigor in the foreign labor certification programs helps ensure American jobs are truly open to U.S. workers, that they get those opportunities first as the Congress originally intended, and that job opportunities are made available to foreign workers only when employers can establish need based on a sound labor market test (H-1B excepted). Increased integrity activities such as conducting audit investigations and supervised recruitments, which began in 2009, increase the average length of time to resolve a permanent application as these are labor-intensive regulatory processes. However, these two integrity measures also generate the highest number of denials and non-certifications, outcomes which enhance program integrity and contribute to jobs being available to U.S. workers.

The results of these integrity activities are now being reported and demonstrate that a little more than one half of the resolved permanent applications during FY 2010 selected for integrity review were found in compliance. Because the regulations require employers to attest to compliance with program requirements at the time of filing a permanent application, this indicator measures the likelihood that OFLC will certify an employer application following a more thorough investigation of the employer's compliance with program requirements or when U.S. workers may be available for certain requested positions. Greater scrutiny also ensures, as the statute requires, that the hiring of foreign workers occurs subject to all terms and conditions, including wages, which safeguard the employment and economic security of American workers and their families.

OFLC will apply stricter scrutiny to applications. In the future, OFLC will revise the PERM application form – which expires in June 2011 – to both strengthen its integrity (by clarifying program requirements) and seek more detailed justifications in key parts of the form. Managers at OFLC headquarters and the national processing center levels will, where feasible, attempt to implement operational strategies to maintain production levels while enhancing audit investigations and other program integrity efforts. In FY 2011, the Department intends to propose legislation to establish an employer-paid user fee to partially fund the PERM, H-2A and H-2B programs to: make the programs more responsive to labor market demand; ensure financial resources to process applications timely; and recognize the benefit of the certification is to the employer and not the public.

Finally, OFLC will initiate a baseline review of its SOPs to confirm they are still accurate and appropriate for the current business process, and will develop a methodology to randomly select a sample of resolved permanent program applications for quality review. Implementation of this quarterly review process will be labor intensive and will require an adequate base level of funding in FY 2011 to achieve the desired performance outcome.