Country of origin may matter on immigration issues

Bias may play a role on Labor Certification approvals, according to a new study

U.S. law clearly states that the U.S. Department of Labor should not discriminate based on an immigrant's country of origin when deciding to approve or deny a Labor Certification application. However, people are human, and U.S. DOL employees may have an unintentional bias against immigrants of certain nationalities, according to a recent study conducted by MIT and Brown University. That study found that the U.S. Department of Labor only approved 67 percent of Labor Certification applications involving Latin American immigrants, compared to over 90 percent involving Asian and Canadian immigrants. The study was published in American Sociological Review in October 2014.

Labor Certification a part of permanent resident status

Obtaining a Labor Certification is an essential step in getting an immigrant employee a Green Card. Foreign workers can obtain one of several employment-based visas which allow workers to legally remain in the United States on a temporary basis. In order to permanently reside in the U.S., however, an immigrant must apply for an Adjustment of Status, which if successful leads to a Green Card. A Labor Certification proves to the U.S. Department of Labor that there are no minimally-qualified U.S. workers available to fill an open position.

The study attempted to take into account all relevant variables, including the salary, position, employer characteristics, and visa history of the applicants. Even for applicants with similar characteristics, Latin American immigrants fared worse when their employer sought a Labor Certification.

Importantly, the bias was all but erased when the Department of Labor audited the application. When the U.S. Department of Labor has all relevant information and the time to thoroughly review an application, unintended bias is not a factor in its decision. However, Labor Certification applications that are audited do take more time. An audited application can take up to two years to complete, as opposed to six months for non-audited applications.

The authors of the study noted that instead of spending additional time, money and resources to review every application, it might make more sense to hide the country of origin during the initial determination.

An experienced immigration attorney can help

Latin American immigrants should not be discouraged from seeking an Adjustment of Status on the basis of one study; however, it does make clear that an immigrant should file a thorough and accurate application to avoid giving the Department of Labor any reason to deny an application, regardless of country of origin.

Employers and workers who wish to make an immigrant's status permanent should seek the help of an experienced immigration law attorney to discuss their legal options and get help with a complex area of U.S law.

Keywords: Employment visa, immigration law, bias, labor certification