For two of the most common types of employment-based permanent residency categories, a labor certification from the United States Department of Labor is required in order to apply for a visa. The labor certification, in a nutshell, is a process where an employer must demonstrate to the Department of Labor that there are not sufficient workers qualified, willing, able and available for a particular position. Furthermore, an employer must be able to show that there will be no adverse effect on workers in the United States similarly employed if the employer hires an alien to fill the position. The labor certification is generally required for persons in the EB-2 category for advanced degree professionals and exceptional ability workers. An exception is made for workers who can demonstrate to the Immigration and Nationality Service that there work is in the national interest. Labor certifications are always required in the EB-3 category for professionals, skilled workers and other workers. Furthermore, a more liberal standard for labor certifications is available college and university teachers.
The labor certification process is highly regulated and very time-consuming. If other viable permanent residency options are available, they should always be considered. Furthermore, it is extremely difficult to win in cases where an applicant is self-employed or has an ownership interest in the business. Before embarking on a labor certification, the employer, attorney and job applicant should closely review a number of key issues including the actual job requirements for the position and the current and future job markets for a position in a particular geographic location
In order to meet the test for showing unavailability of US workers, the employer will need to conduct a recruitment campaign under the supervision of the department of labor in the state which has jurisdiction over the intended place of employment (normally referred to as a “SESA”). The employer will initially submit Form ETA 750 Parts A and B with the SESA. Part A, the “Offer of Employment” requires the employer to provide information about the minimum requirements for a position as well as information about the employer. The form also requires the employer to attest to the following conditions:
That he or she has enough funds to pay the wage offered to the alien;
That the wage equals or exceeds the prevailing wage upon beginning work;
That the wage offered is not based on commissions, bonuses, or other incentives unless the amount paid to the employee is guaranteed;
That the employer will be able to place the worker on the payroll on or before entrance into the United States;
That the job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
That the job’s availability is not due to a strike, lockout, or other work stoppage;
That the job opportunity’s terms are not contrary to law; and
That the job opportunity is clearly open to any qualified US worker.
One of the key requirements here is payment of the prevailing wage. The wage offered must be at least 95% of the prevailing wage. The SESA normally can provide the prevailing wage information. If the employer wishes to dispute the wage, it is possible to present alternative information. The US Department of Labor will determine which is the correct wage when it makes a determination on the labor certification application.
The employer must also be careful to carefully document all of the true job requirements in the application. Requirements not listed in the ETA 750 cannot be used as the basis for rejecting otherwise qualified US workers for the position. On the other hand, an employer should not be unduly restrictive in stating requirements. In that case, the Department of Labor may hold that the requirements are simply being tailored to suit the alien’s specific educational and experience credentials. The Department of Labor is particularly tough on foreign language and computer language requirements. In these cases, it is usually a good idea for an employer to include a business necessity letter explaining additional requirements and it may also be useful to include an expert affidavit outlining the need for the requirement.
Part B of the ETA 750 is the “Statement of Qualifications of the Alien.” The employee must list all education, employment for the last three years and other employment-related experience relevant to the offered position. This information is very important since the alien must demonstrate that he or she meets all of the job requirements stated in Part A of the application. The worker will need to have actual documentation of the education and experience including school transcripts and letters from previous employers.
After the ETA 750 is submitted to the SESA, the application will either be accepted as submitted or the SESA officer will send a letter suggesting ways to change the application to make it acceptable. After the application is accepted, the SESA will place a job order in its state-wide computerized “job bank” for thirty days. The SESA will then direct the employer to advertise the position and post a job notice at the employer’s work site.
The advertisement that is required will normally be placed in either a newspaper of general circulation for three consecutive days (normally including a Sunday), or in a professional or national trade publication, depending on what is considered normal for the specific type of position. The advertisement will include the job duties and requirements and direct applicants to send their applications to the SESA. The ad will not list the name of the employer.
The job posting mentioned above will need to be given to a union representative or bargaining agent if one exists at the place of employment or posted in a conspicuous place on the job site for at least ten working days. The notice must contain a description of the position as well as the salary offered. Unfortunately, an employer cannot get around posting wage information.
When applicants begin to respond to the recruitment, employers must be very diligent in responding. Failure to act quickly in responding to applications for the position may result in the US Department of Labor finding that the recruitment was not done in good faith. All applications forwarded to the employer by the SESA are presumed to meet the minimum qualifications for the position and must be handled. In practice, many SESA’s do not screen resumes at all, but this does not excuse the requirement to respond to the application. Employers should interview all applicants in person or by telephone. In some cases, an employer can use a questionnaire form to screen candidates and then follow up by interviewing the candidate. Applicants can only be rejected for lawful, job related reasons. Employers frequently run into problems trying to contact job applicants. Employers should try to use multiple means to contact an applicant. Sending a letter by certified mail and calling the applicant by telephone are usually good choices.
Within 45 days from the issuance of the instructions for recruitment by the SESA, the SESA must receive a recruitment report outlining all of the results of the recruitment. The SESA will then review the report and often will contact the job applicants to see if they were actually interviewed. If everything is satisfactory, the SESA will forward the application to the regional office of the US Department of Labor. The Department of Labor may request additional information or documentation. DOL may also issue a document called a “Notice of Findings” stating its objections to granting certification and suggesting changes in the application. In some cases, the employer can submit rebuttal information and offer to readvertise. Hopefully, however, DOL will not issue a Notice of Findings and will instead issue an approved labor certification.
After the labor certification is approved, the employer will submit an application for permanent residency for the worker along with the labor certification to the Immigration and Naturalization Service. After approval there, the alien can submit the final application to adjust status to permanent residency (if the alien is in the US) or apply for consular approval of permanent residency (if the alien is outside the US). Labor certifications do not have expiration dates, but are normally only valid for the specific employer.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.