Frequently Asked Questions about Labor Certification
Labor certification is frequently the first step
in the employment-based, permanent residency process. This page
seeks to answer questions frequently asked about labor certification.
These questions are divided into the following four areas:
There are three main requirements to
qualify for labor certification:
- the job must be full-time
(not part-time);
- the job must be a permanent one (not
temporary or seasonal); and
- the employer must pay the employee
at least the prevailing wage for that position in the intended area of
employment.
The prevailing wage is determined by
Department of Labor
wage statistics, or by data from a qualifying salary
survey of employers in the geographical area of the job.
Under the "standard" labor certification filing procedure, the
employer files the labor certification application with the foreign
labor certification unit of the appropriate state workforce agency (typically in the
state in which the job is located). The state workforce agency
provides the employer with instructions for advertising the position.
The employer places the required advertising, completes the recruitment and
interviewing, and forwards its recruitment report to the state workforce
agency.
The state workforce agency reviews and forwards the application to
the regional office of the U.S. Department of Labor. The regional office
of the U.S. Department of Labor then makes a decision about whether to
"certify" (i.e., approve) the labor certification application. If the
U.S. Department of Labor certifies the labor certification application,
then the employer becomes eligible to file a green card application for
the foreign worker at the U.S. Citizenship & Immigration Services (CIS).
(The step-by-step procedure of the "standard"
labor certification process is also covered under our
Labor Certification Basic Requirements
and Procedures page.)
The state workforce agency reviews the description of job duties and evaluates the
employer's stated minimum requirements for the job. The state
agency then
determines the prevailing rate of pay and, if necessary, gives the employer a chance to
amend wages and/or the job requirements that do not comply with labor
certification regulations.
Once the application is complete, the state workforce agency oversees the employer's
recruitment of U.S. workers, by placing a job order in the statewide job
bank system or equivalent. The employer must post an announcement of the
job opportunity at its place of business along with a notice of the
filing of a labor certification application. The employer must
also place an advertisement in whichever publication the state agency
determines to be most appropriate for the particular occupation.
The state workforce agency will screen resumes from job applicants and
then forward
apparently qualified resumes to the employer. The employer must
interview and evaluate the applicants and file a report with the state
workforce agency
giving the lawful, job-related reasons why each rejected applicant is
not qualified for the position. The employer then forwards its recruitment report
to the state workforce agency as evidence of recruitment advertising and in-house posted
notice.
The state workforce agency analyzes the employer's recruitment efforts and the
employer's evaluation of the U.S. applicants. The agency then advises the
employer of any
deficiencies to be corrected and assembles the documentation to be
forwarded to the regional office of the U.S. Department of Labor ("DOL").
For more information, please go to our
Standard Labor Certification Process page.
Although the processing times vary around the country,
the "Reduction in Recruitment" (RIR) labor certification process is
typically faster than the "standard" labor certification process.
(An RIR labor certification application case is one in which the
recruitment is done before the labor certification application is
filed.) RIR applications are typically faster, because the recruitment
has already been done before the application is filed. If the state workforce agency finds the
application and documentation acceptable, it can simply forward the
application to the U.S. Department of Labor without requiring additional
recruitment.
The RIR process cannot be used in all cases. To use the RIR
labor certification
process, the application must meet the following conditions:
- The employer must provide evidence of a "pattern" of normal industry
recruitment efforts conducted within the six months preceding the
application filing date; and,
- The application must list only the minimum experience requirements
and standard requirements for training and education. The job
duties/responsibilities on the application must not exceed those
considered normal for the occupation.
Evidence for advertising for an RIR labor
certification application should include internal job postings,
newspaper and/or journal advertising, Internet advertisements, contacts with
local colleges and university placement agencies, job placement
agencies/recruiters, and any other recruitment efforts normal to the
industry. Other evidence and documentation may also be required,
depending on the job.
Regional DOL offices around the country vary somewhat in their views
of what constitutes appropriate recruitment efforts. There are also a
number of DOL memoranda on the issue. For example, according to the DOL, Internet
advertising is apparently helpful as an additional measure, but is not
yet approved as the sole medium. In reality, what constitutes legally sufficient advertising for an RIR labor certification case
can be one of the more complex legal and strategic issues inherent in
preparing a successful labor certification application. This is the type
of issue with which competent immigration counsel, such as
Peng & Weber,
can assist employers.
According to the DOL, employers must wait one month from the date of most recent
advertisement before submitting an RIR labor certification application.
For more information, please go to our RIR
Labor Certification Process page.
I have heard that the PERM program will greatly speed up
labor certification applications. Should I file my labor
certification application now, or wait until PERM becomes available?
Although the Department of Labor has released a proposed rule
about the new PERM program, this program is not yet available.
Currently, there is no firm date when PERM will become available.
Whether you should wait to file your labor certification application
depends on many factors, including your immigration status, the
length of time remaining for your status, job security, and the
backlogs in your state. Given the uncertainty around when the
PERM program will be available, it may be best to start your labor
certification application as soon as possible.
For more information, please go to our
PERM - The Future of Labor Certifications page.
After the state work force agency forwards the application
("standard" or "RIR" case) and supporting documentation to the
regional office of the U.S. Department of Labor, the regional DOL office
reviews the labor certification application and either "certifies"
(i.e., approves) the application or issues a Notice of Findings. A Notice
of Findings
is simply a document stating that the DOL intends
to deny the application and explaining why it intends to deny it. (Sometimes, the regional DOL office sends a
request for the employer to conduct additional advertising.) The DOL
considers the originally submitted application, together with any
additional information the employer may have subsequently provided, and
then makes a decision. The decision is based on whether the
DOL believes the employer has met the
requirements of the federal regulations governing the foreign labor
certification program.
Applications that require the foreign worker to work at several
locations in the U.S. are usually filed with the state work force agency having jurisdiction
over the area in which the employer's main office or headquarters is
located.
The process to obtain a permanent labor
certification can sometimes take several years by the time the
application makes its way through the entire two-step process at the
state workforce agency and the DOL regional office. Some cases are
extremely complex and require additional evaluation. You can find
current processing times for all DOL regional offices and state
workforce agencies on the
Labor Certification Processing Times
page.
Is labor certification always required to obtain a green card based on
employment?
No. For some employment-based green card
opportunities, a labor certification is not required.
The employment-based green card opportunities that do not
require an approved labor certification application are:
Aliens of Extraordinary
Ability,
Outstanding Professors or Researchers,
Multinational Executives or Managers, and
National Interest
Waivers.
National
Interest Waivers