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Labor Certification Overview


Labor certification is a statement from the U.S. Department of Labor (DOL) that a particular position at a particular company is "open" because no U.S. workers who satisfy the minimum requirements for the job are available.

A labor certification from the U.S. DOL is the necessary first step in most employment-based immigrant visa petitions. To protect against displacement of American workers, immigration law requires that an employer get a labor certification before filing an immigrant visa petition on behalf of a foreign worker.

Who Needs Labor Certification


Most unskilled workers, skilled workers and professional workers need to obtain a labor certification before applying for a green card. Exceptions exist for: (1) persons in shortage occupations (registered nurses, physical therapists, sheep herders and those demonstrating "exceptional ability" in business, science or arts) as defined by the Department of Labor; and (2) persons demonstrating to the U.S. Immigration and Naturalization Service (CIS) that they possess extraordinary ability, are multinational executives or managers, or persons whose work is deemed in the "national interest." Persons holding such positions, which are considered unique and therefore do not displace American workers, may apply directly to the CIS for a green card. Some outstanding university and college teachers and researchers in tenure-track jobs may avoid labor certification. Other college teachers and researchers may benefit from a fast-track form of labor certification called "special handling."

Time Frame


The time required to obtain a labor certification can range from several months to two years, depending on the location of the job. Labor departments in New York, California and Illinois are particularly backlogged.

Process


To obtain labor certification, an employer and a foreign national employee together submit a completed application form together with documentary evidence to the state DOL. The state DOL confirms that the wage offered for the position is the "prevailing wage" and informs the employer whether the salary must be increased to satisfy prevailing wage requirements. The state DOL then okays an advertising strategy and sends the application to the local DOL. At the local DOL office, the job is listed as "open" in the state computerized job bank, and the employer is instructed to place an ad in a specified journal or newspaper. The ad will ask applicants for the position to apply directly to the local DOL. The local DOL screens applicants and refers seemingly qualified applicants to the employer. The employer must promptly interview all seemingly qualified applicants. The employer must also consider and interview if necessary any other applicants who, through the job bank listing or pure chance, apply for the position. The employer then files a recruitment report with the local DOL explaining why the ad placement was appropriate, who applied for the job, if any, and why these people were not qualified.

DOL Review


Three offices of the DOL (local, state and federal) will separately and in sequence review the recruitment report. If the recruitment report succeeds in convincing all three levels of DOL that appropriate recruitment was conducted and no minimally qualified Americans were available for the position, the U.S. DOL issues a labor certification. The decision of the local or state labor department to accept a recruitment report is not binding on the federal DOL. Therefore, unfortunately, late in the process the employer may learn that the ad placement, for instance, is not acceptable to the federal DOL, even though the local DOL approved it months earlier.

American Workers


Labor certification only fails if qualified "American workers" apply for the position. An American worker is someone who is a permanent resident or citizen. A labor certification is not threatened by the application of a nonimmigrant foreign national for the position.

Employer Preference


One of the basic requirements of labor certification is the employer may show no preference for the foreign national employee who is currently occupying the position. Rather, the employer must conduct a recruitment as though the position were open. Also, labor certification will not succeed merely because the foreign national employee is more qualified than American workers who apply. Rather, labor certification will only succeed if no American workers who are minimally qualified for the position apply.

Ability to Pay the Wage


Because the labor department often instructs an employer what the "prevailing wage" (e.g., the required salary for the position) is, and because the position must be advertised at this salary, an employer is sometimes put in the awkward position of having to increase the salary for a foreign national worker beyond what is offered to American employees who hold the same position at the same company. However, an employer should bear in mind that the employer does not need to begin paying the prevailing wage to the employee until permanent resident status is obtained, which is often a year or more into the process. Therefore, although the stated salary for the position may be higher than the salary currently received by the foreign national employee, the employer is only obligated to pay the salary at the time a green card is ultimately approved.

Successful Labor Certification Strategy


Labor certification is best started when the employer and employee have developed a successful working relationship, when the employee has attained as many promotions, job duties or special skills as possible, and when there is confidence that renewed recruitment will not encourage applications from qualified Americans. Special job duties and requirements, such as language skills, cultural experience and work experience, if genuine, help to ensure the success of a labor certification.

On-the-Job Experience


The alien beneficiary of a labor certification must satisfy the minimum requirements defined for the position at the time he or she was originally hired. For example, if a company hires a foreign national who has recently graduated from college, and starts a labor certification for that person two years later, the employer may not require two years of work experience, because the company hired this person for the job when he or she did not have any work experience. Exceptions include where the foreign national employee has been promoted to a higher position and an outside recruitment was conducted at the time of that promotion.

Minimum Requirements


The key to a successful labor certification is careful consideration of the true minimum requirements for the position. Bear in mind that all employees of the company who hold this position must satisfy the minimum requirements. Therefore, for example, a computer software company cannot require that all salespersons have bachelor's degrees in engineering or master's degrees in business if it currently employs persons who do not possess these qualifications.

If a Qualified American Worker Applies


If a qualified American worker applies, the employer is not required to hire that person. Nor is the employer required to fire the foreign national employee. However, the labor certification may fail. Because in most cases the foreign national employee has separate temporary work authorization, such as an H1B visa, the foreign national employee may continue to work for the company.

If the Labor Certification Fails


If the labor certification fails, a new application may be filed after six months.

Prior Recruitment


Proof that a company has advertised extensively without identifying qualified American workers for this position in the past is normally not accepted by the DOL as a way to avoid repeating the recruitment process as described above. There are few exceptions to this rule.



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