Subscribe to Immigration Newsletter & Immigration News Update | Labor Certification One of the ways a Foreign Alien worker can become a Permanent Resident of the United States is through Employment.A significant percentage of Employment based green card Application require a Labor Certification approved by Department of Labor(DOL).In general, United states Employers Filing an Employment based Immigrant Visa based I-140 petitions in Employment based category 2 (EB-2) and Employment based category 3 (EB-3 ) must first obtain an approved Labor Certification Application from United States Department of Labor ( DOL) on behalf of the foreign Alien worker Under section 212(a)(5)(A) of the Immigration and Nationality Act certain Aliens may not obtain Immigrant visas for entrance into the United States or seek Adjustment of Status (green card) in order to engage in permanent Employment unless the Secretary of Labor has first certified to the Secretary of State and to the Secretary of Homeland Security that: - There are not sufficient United States workers who are able, willing, qualified and available at the time of Application for a visa and admission into the United States and at the place where the Alien is to perform the work; and
- The Employment of the Alien will not adversely affect the wages and working conditions of United States workers similarly employed
Labor Certification Attestations The Employer must certify to the conditions of Employment listed on the Application for Permanent Employment Certification (ETA Form 9089).These conditions are: - The offered wage equals or exceeds the prevailing wage determined and the wage the Employer will pay to the Alien to begin work will equal or exceed the prevailing wage that is applicable at the time the Alien begins work or from the time the Alien is admitted to take up the certified Employment;
Employers are required to obtain a Prevailing Wage Determination from the State Workforce Agency (SWAY). The prevailing wage must be the prevailing wage at the time the recruitment was conducted for the labor Certification Application for which the Employer is seeking certification, not the prevailing wage when the Alien beneficiary was initially hired. An Employer must pay 100% of the prevailing wage or more but not less. - The wage offered is not based on commissions, bonuses or other incentives, unless the Employer guarantees a prevailing wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage;
- The Employer has enough funds available to pay the wage or salary offered the Alien;
- The Employer will be able to place the Alien on the payroll on or before the date of the Alien's proposed entrance into the United States;
- The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
- The Employer's job opportunity is not:
- Vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage;
- At issue in a labor dispute involving a work stoppage.
- The job opportunity's terms, conditions and occupational environment are not contrary to Federal, state or local law;
- The job opportunity has been and is clearly open to any U.S. worker;
United States worker means any worker who is
- A U.S. citizen;
- A U.S. national;
- Lawfully admitted for permanent residence;
- Granted the status of an Alien lawfully admitted for temporary residence
- Admitted as a refugee or
- Granted asylum
- The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons;
- The job opportunity is for full-time, permanent Employment for an Employer other than the Alien.
Required Pre-filing Recruitment
Employers are required to conduct recruitment before filing the Labor Certification Applications, this is called pre filing recruitment .Except for Labor Certification Applications involving college or university teachers , Schedule A occupations and sheepherders , an Employer must conduct the following recruitment prior to filing the Application for Permanent Labor Certification:
Professional occupations Professional occupation means an occupation for which the attainment of a bachelor's or higher degree is a usual education requirement. If the Application is for a professional occupation, the Employer must conduct the recruitment steps within 6 months of filing the Application for Alien Employment certification. The Employer must maintain documentation of the recruitment.
Mandatory StepsA job order and two print advertisements, are mandatory for all Applications involving professional occupations, except Applications for college or university teachers selected in a competitive selection and recruitment process . The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the Application. Job Order Placement of a job order with the State Work Force Agency (SWAY) serving the area of intended Employment for a period of 30 days.
Advertisements in Newspaper or Professional Journals
Placing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended Employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.
Where the job opportunity is located in a rural area of intended Employment that does not have a newspaper with a Sunday edition, the Employer may use the edition with the widest circulation in the area of intended Employment.Where the job involved in the Application requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the Employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Additional Recruitment Steps The Employer must select three additional recruitment steps from the following alternatives. Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the Application. None of the steps may have taken place more than 180 days prior to filing the Application. - Job fairs.
- Employer's Web site.
- Job search Web site other than the Employer's.
- On-campus recruiting.
- Trade or professional organizations.
- Private Employment firms.
- Employee referral program with incentives.
- Campus placement offices.
- Local and ethnic newspapers.
- Radio and television advertisements.
Non Professional Occupations Nonprofessional occupation means any occupation for which the attainment of a bachelor's or higher degree is not a usual requirement for the occupation.Where the Application is for a non professional occupation, the Employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the Application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the Application. Job order Placing a job order with the SWA serving the area of intended Employment for a period of 30 days. Newspaper Advertisements Placing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended Employment most appropriate to the occupation and the workers likely to apply for the job opportunity. Where the job opportunity is located in a rural area of intended Employment that does not have a newspaper that publishes a Sunday edition, the Employer may use the newspaper edition with the widest circulation in the area of intended Employment. Advertising Requirements Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must: - Name the Employer;
- Direct applicants to report or send resumes, as appropriate for the occupation, to the Employer;
- Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
- Indicate the geographic area of Employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
- Not contain a wage rate lower than the prevailing wage rate;
- Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
- Not contain wages or terms and conditions of Employment that are less favorable than those offered to the Alien
The offer of Employment submitted by the Employer must not be tailored to the specific skills, education, or experience of the Alien beneficiary, thereby calling into question whether a bona fide job opportunity actually exists.
Where an Employer during the recruitment process hires a U.S. worker for the job opening, the process stops at that point, unless the Employer has more than one opening, in which case the Application may continue to be processed.
Recruitment Report
The Employer must prepare a recruitment report signed by the Employer or the Employer's representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers. Back to Top Notice Before filing the Labor Certification Application, the Employer is required to have provided notice of the filing to - To the bargaining representative(s) (if any) of the Employer's employees in the occupational classification for which certification of the job opportunity is sought in the Employer's location(s) in the area of intended Employment.
- If there is no such bargaining representative, by posted notice to the Employer's employees at the facility or location of the Employment. The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the Employer's U.S. workers can readily read the posted notice on their way to or from their place of Employment. Appropriate locations for posting notices of the job opportunity include locations in the immediate vicinity of the wage and hour notices or occupational safety and health notices . In addition, the Employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the Employer's organization.
- In the case of a private household, notice is required only if the household employs one or more U.S. workers at the time the Application for Labor Certification is filed.
The purpose of the notice requirement is to provide any person with the opportunity of submitting documentary evidence bearing on the Application for certification (such as information on available workers, information on wages and working conditions, and information on the Employer's failure to meet the terms and conditions with respect to the Employment of Alien workers and co-workers). Job Duties and Requirements The job opportunity's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation . To establish a business necessity, an Employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the Employer's business and are essential to perform the job in a reasonable manner.
A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following: - The nature of the occupation, e.g., translator; or
- The need to communicate with a large majority of the Employer's customers, contractors, or employees who can not communicate effectively in English,
Where the job opportunity involves a combination of occupations, the Employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended Employment, and/or the combination job opportunity is based on a business necessity. Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and it must be clearly stated that any suitable combination of education, training, or experience is acceptable. Actual Job Minimum Requirements The job requirements, as described, must represent the Employer's actual minimum requirements for the job opportunity. The Employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity. If the Alien beneficiary already is employed by the Employer, in considering whether the job requirements represent the Employer's actual minimums, Department of Labor (DOL will review the training and experience possessed by the Alien beneficiary at the time of hiring by the Employer, including as a contract employee. The Employer can not require domestic worker applicants to possess training and/or experience beyond what the Alien possessed at the time of hire unless: - The Alien gained the experience while working for the Employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or
- The Employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
In evaluating whether the Alien beneficiary satisfies the Employer's actual minimum requirements, DOL will not consider any education or training obtained by the Alien beneficiary at the Employer's expense unless the Employer offers similar training to domestic worker applicants. Conditions of Employment Working conditions must be normal to the occupation in the area and industry.
Live-in requirements are acceptable for household domestic service workers only if the Employer can demonstrate the requirement is essential to perform, in a reasonable manner, the job duties as described by the Employer and there are not cost-effective alternatives to a live-in household requirement.
Layoffs If there has been a layoff by the Employer in the area of intended Employment within 6 months of filing an Application involving the occupation for which certification is sought or in a related occupation, the Employer must document it has notified and considered all potentially qualified laid off (Employer applicant) U.S. workers of the job opportunity involved in the Application and the results of the notification and consideration.A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice. Administrative Review A request for review of the denial, revocation, or debarment may be made to the Board of Alien Labor Certification Appeals by the Employer or debarred person or entity by making a request for such an administrative review. Expiration of Labor Certification An approved permanent Labor Certification granted on or after July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of the date the Department of Labor granted the certification.
An approved permanent Labor Certification granted before July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of July 16, 2007 Invalidation of Labor Certifications After issuance, a Labor Certification may be revoked by Department of labor. Additionally, after issuance, a Labor Certification is subject to invalidation by the Department of homeland Security (DHS) or by a Consular Officer. Back to Top
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