KEEP LABOR
CERTIFICATION PROGRAMS IN ETA
THE ISSUE: The
Department of Labor has proposed to shift administration of all
foreign labor certification programs from the Employment and
Training Administration (ETA) to the Employment Standards
Administration (ESA), Wage and Hour Division. The employer
community strongly oppose this shift in how the DOL provides U.S.
companies with access to needed foreign-national workers where a
shortage of American workers can be demonstrated.
BACKGROUND:
·
The shift from ETA to ESA would not serve employers.
Unlike ETA, ESA has no experience administering a program of this
type and magnitude. Due to its past experiences, ETA has a
better understanding of how to effectively reform the current
program. Given the urgent need for reform, ESA’s lack
of knowledge of the program and employers’ needs would
further exacerbate problems in the labor certification process.
Furthermore, these two divisions have different and incompatible
missions. ETA focusses on employers’ responsibilities
in meeting the needs of a prepared U.S. workforce. On the
other hand, ESA’s focus is on punishing those employers who
violate the law. Enforcement and service provision are two
distinct functions that would represent a conflict of interest if
they were to fall within the same division. (Acknowledging
this conflict, ESA has stated that it would keep the functions
separate within the division. However, such a separation is
unlikely given ESA’s well-defined enforcement mission.)
The better solution is to maintain administration of the program
within ETA, adopt needed improvements, and leave enforcement
actions against violators to ESA.
·
The proposed shift does not address, and would exacerbate,
real areas of concern. This shift does not address the
real problems with the labor certification programs: a lack of
adequate funding, problems in program administration, and long
delays in which U.S. employers now must wait three to four years
in many parts of the country before applications are processed.
The attestation proposal that DOL currently is proposing (and
which ETA developed) could address some of these concerns, and
should be operated within ETA. A switch to ESA would only
exacerbate problems. The end result would be that U.S.
business would face further difficulties in acquiring vitally
needed foreign-national workers.
·
DOL has neglected to implement procedures that would improve
the administration of the alien labor certification programs and
help get this program back on track. While maintaining
this program within ETA, DOL needs to improve program
administration. Options for such improvement include
increasing the number of occupations designated as “shortage
occupations” (known as Schedule A occupations), expanding
the use of streamlined processes based on pre-application
recruitment, and recognizing actual business practices in
recruitment. Adopting these options would both improve the
current program and enhance the likelihood of success of any
major overhaul, including the attestation proposal.
CURRENT STATUS: Congressional
appropriators must approve the DOL’s proposal. While
the appropriations subcommittees already have held hearings
during which DOL testified, the appropriations bill has yet to be
finalized. Language could be inserted in either the
legislation itself prohibiting funds from being used for this
move, or appropriators could omit this budget item from the
legislation and state in the committee report their objections to
the move. Either method would prevent the Department of
Labor from carrying out its proposal.
AILA’s POSITION:
While AILA believes that the labor certification process needs
reform, we strongly oppose the shift in administration to Wage
& Hour. We do not believe the enforcement arm of any
agency should be in charge of an adjudication function
(consistent with our policy regarding INS reorganization). Further,
we believe that such a move at this time would only hamper
efforts to reform the system.
39BS9014.1-Last Updated October 13, 1999