DOL’s New Labor Certification Registry Means Broad Public Disclosure

Friday, August 16, 2013 - 14:58

A corporate human resources manager recently picked up her phone to an exuberant greeting. On the other end was a foreign national employee moments after he discovered that the labor certification filed by the company on his behalf – the first-chance step in the employment-based green card process – had been approved by the U.S. Department of Labor (DOL). The foreign national had tracked his case using DOL’s newly launched Labor Certification Registry (LCR), an online database that makes employers’ labor certifications and other DOL immigration-related filings easily accessible to the public.

The public disclosure surely satisfied the foreign beneficiary, but it surprised the HR manager that sensitive employment information could be accessed publicly before the employer was notified about the disposition of its filing. The LCR’s daily updated database and easy accessibility means unprecedented public disclosure of employers’ foreign hiring strategies, allowing anyone from co-workers curious about their neighbor’s salary to rival businesses tracking their competition’s hiring strategies, a window into a wide variety of sensitive business and personal information. This new program began July 1, 2013, and its repercussions have only just begun to be felt.

When an employer wishes to sponsor a foreign worker for the H-1B temporary worker visa or permanent residency in the U.S., it must seek advance approval from DOL by filing a labor condition application (LCA) for H-1B and certain other cases or a labor certification application for most types of employment-based permanent residence. In these applications, employers must provide detailed information about the offered position, wages and other terms and conditions of employment, and, in the case of labor certifications, detailed information about the foreign beneficiary.

With the advent of the LCR, once filings are approved, they become available in an online database located at icert.doleta.gov, with minimal redaction. Once the LCR is fully operational, all of these records dated back to April 15, 2009 will be available, with new filings posted within two business days of certification. (Posting of H-1B LCAs was postponed and is still unavailable as of August 2013.)

The searchable database gives public users nearly complete, unfiltered access to information about jobs that have been certified for temporary or permanent employment of foreign employees, including job titles and descriptions, requirements, wages and recruitment. Employer contacts, including names of hiring managers and signatories, along with their addresses, direct phone numbers and e-mail addresses are also disclosed. Only the employer’s Federal Employment Identification Number (FEIN) and the foreign beneficiary’s name and other personally identifiable information are redacted. Members of the public can easily search employer filings by case type, date, job location, employer name and industry.

General public disclosure of labor certification and LCA data is not new. For many years, DOL made such information available on a quarterly basis, and members of the public had appropriate access to information about the employers seeking DOL certification, including job titles, job locations and salary range information. The LCR, by contrast, is a significant expansion of public access to sensitive employment information. In its breadth, unprecedented speed and ease of access, the LCR is the latest step in a progressive governmental effort to broaden exposure of employers’ foreign national hiring practices.

Though DOL is in many ways laudably zealous in carrying out its mission to protect American workers, it is difficult to discern how that goal is furthered by the new labor certification registry. While on its face, the LCR may seem like a no-harm, no-foul system to retrieve already available information, in our view, its exposure of sensitive company information leaves organizations vulnerable – to their competitors, who can easily track a rival’s jobs, wages, and hiring timelines; to current employees, who could quickly look up the company in the LCR, search for positions into which foreign workers were hired, and see the qualifications and wages of colleagues; and to foes of nonimmigrant visa programs, who are not shy about seeking opportunities to attempt to “shame” companies that sponsor foreign workers.

Most importantly, the registry does not serve to promote job opportunities to U.S. workers, since all of the positions listed in the databases have already been approved by DOL and are presumably filled. Unless, of course, the true goal is to discourage U.S. companies from sponsoring foreign workers, in which case the LCR might act as a deterrent, thus creating the opposite effect of the Obama administration’s stated support for the creation of additional sponsorship opportunities, one of the key components of proposed Comprehensive Immigration Reform. We believe that the DOL would be wise to modify the LCR to add some key additional redactions that would make it far less likely that viewers would be able to put two-and-two together and discover key information that truly should be protected. This would strike the right balance between the government’s “Open Government” initiative for transparency and the privacy interests of both workers and employers.

 

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.comSean Quinn, a law clerk, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.