LABOR CERTIFICATIONS, PART II

Posted on: November 12th, 2011
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The requirement of a labor certification – essentially a statement from the Department of Labor that there are no qualified available US workers willing to fill the position offered – has been part of US immigration law since 1965.  Before then an immigrant worker could not be excluded unless the Attorney General issued a statement saying that there was no shortage of US workers and that admission of the alien workers would harm the position of US workers.  The labor certification applies to all workers in the EB-3 preference category and most workers in the EB-2 category.  Aliens in the EB-1 preference are exempt from the requirement.

The question answered by the labor certification is whether there are any “able, willing, qualified, and available” US workers.  US workers include citizens, permanent residents, and anyone authorized to work in the US whose work authorization is not tied to a specific employer.  In most labor certifications, the qualified US worker need only meet the minimum qualifications for the position.  The exceptions are for teachers at colleges and universities and aliens of exceptional ability in the performing arts, in which the US worker must be as qualified as the alien worker.

This article will discuss the requirements and procedures of the standard labor certification process.  Specialized labor certification procedures will be discussed next week.

Filing Form ETA 750 with the State Employment Service Agency

Although a labor certification is ultimately approved or denied by the Department of Labor, the initial filing is with a state employment service agency, or SESA.  The employer must submit the Department of Labor Application for Alien Employment Certification, Form ETA 750, Parts A and B.  This form outlines the job offer, the alien’s qualifications, and employer’s the minimum requirements for the position.

Another part of the ETA 750 encompasses the following eight certifications made by the employer:

  • The employer has the funds to pay the offered wage;
  • The employer will pay the alien at least the prevailing wage;
  • If the job offers a range of wages based on experience, the bottom of the range is within five percent of the prevailing wage;
  • If the wage involves bonuses or commissions, the employer will guarantee the prevailing wage;
  • The employer will be able to put the alien on the payroll as soon as they enter the US;
  • The job does not involve discrimination on the basis of race, religion, national origin, age, sex, handicap or citizenship;
  • The position is not available because of a strike, lockout, or other labor dispute creating a work stoppage;
  • The terms and conditions of the job do not violate Federal, state, or local laws;
  • The position is open to qualified US workers.

As soon as the labor certification is filed with the SESA, the employer must provide employees with notification of the filing.  If there is a union or bargaining representative, notice must be given to it.  If there is no such representative, notice is given by a posting in a conspicuous place.  The posting must remain visible for at least 10 days.  Regardless of the type of labor certification involved, this notice must be given when the application is filed.

The SESA must approve this form.  Approval depends both on whether the SESA determines the position is appropriate for a labor certification, and whether it finds the application incomplete or otherwise unacceptable.  If the application is not appropriate for a labor certification, it will be returned to the employer.  If the application is incomplete, the employer has 45 days to submit a corrected application.

Once the labor certification application is satisfactory, the SESA will supervise a period of recruitment for the position.  The SESA will place a job order in its employment security job bank, and the employer must also advertise for the position, and must direct applicants to the SESA, which will then refer them to the employer.

Advertisement

The advertising requirements vary among each of the nine Department of Labor regions across the US.  There are, however, some rules of general applicability, as well as guidelines to follow that will help avoid an eventual denial of the labor certification application.

Nonprofessional jobs should be advertised in a generally circulated newspaper for three consecutive days.  The publication should reach the audience most likely to bring the largest number of responses, and some Department of Labor regions require that one of the days on which the ad runs be a Sunday.

Professional jobs and those that are highly technical in nature should be advertised in a professional journal, as should positions requiring a professional degree.  Some regions will allow advertising for these jobs in a generally circulated newspaper, if one of the days the ad runs is a Sunday.

If the position has a foreign language requirements, some regions will allow advertising in an ethnic publication if it is circulated in the area of the job location.  If the ethnic paper is not published daily, in some cases a single ad will suffice.

All advertising should be located in that part of the publication where it will most likely be noticed, and should be so worded as to elicit the greatest number of responses.  The ad must describe the job duties and responsibilities, hours and compensation and the minimum requirements, but should not reveal the name of the employer.  The ad should include the SESA job number assigned to the position and should direct applicants to contact the SESA.  Tear sheets of the ads should be submitted.

Decision on the Application

If the recruitment attempts are unsuccessful, the SESA will forward the application, along with prevailing wage data to the Department of Labor regional Certifying Officer.  The SESA may include any comments or observations it feels are appropriate, and will make a recommendation on the approval or denial of the application.

Even if the recommendations of the SESA are followed, the Department of Labor can still deny the application.  Therefore it is important to be familiar with the requirements and procedures of the Department of Labor regional office to which the application will be submitted.

Once the application is submitted to the regional office of the Department of Labor, the decision will be made on the evidence in the record.  The Department of Labor is guided primarily by two concerns – whether there are available US workers and whether approving the labor certification would have a negative impact on the working conditions of US workers.  Adverse decisions may be appealed to the Board of Alien Labor Certification Appeals.