Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. The prospective employer must first obtain a labor certification and approval of a petition. The labor certification process is one of the most complex of all immigration-related procedures. This pamphlet will make you aware of some of the requirements and procedures in this intricate and time-consuming process. Be sure to consult with an attorney experience in immigration matters to be certain that your case is prepared correctly.
What is a Labor Certification?
An approved Labor Certification (LC) is a document issued by the U.S. Department of Labor (DOL) certifying that:
An employer needs the foreign worker’s skills and abilities.
The employer has tried to recruit U.S. workers for the position. The employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. worker and who is ready, willing, and able to fill the open position.
The employer has offered the position at the normal or prevailing wage.
The employer has found no qualified U.S. workers. Candidates who respond to the recruitment are presumed to qualify; the employer must convince DOL that they do not. If DOL is not convinced, the labor certification will not be issued and the foreign national will not be able to immigrate to the United States.
The Labor Certification Process
- Establish a valid employee/employer relationship. Although the LC process can be done for persons who are outside the United States, most LCs are begun for persons who are already in the United States working for an American employer.
- Determine the minimum requirements. The key to the LC process is to decide what the true minimum requirements to the position are. The requirements generally must be normal to the occupation, must not be overly restrictive, and not more than the worker had when hired into the job offered.
- Determine the prevailing wage. The salary offered must be at least 95 percent of the prevailing wage, as determined by DOL.
- Analyze responses to recruitment. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.
- Processing times. Processing times vary from a few months to a few years, depending upon the location of the position.
What Happens After Labor Certification Approval?
The approved LC is filed with the Bureau of Citizenship and Immigration Services (BSIC) along with an immigrant petition to determine whether the foreign national qualifies for one of the following categories of sponsorship:
Member of the Professions with Advanced Degrees or the Equivalent, or Aliens of Exceptional Ability in the Sciences, Arts, or Business (“Second Preference”).
Professionals (jobs requiring a bachelor’s degree); Skilled Workers (jobs requiring two years’ or more training or experience); or Unskilled Workers (jobs requiring less than two years’ training for experience)
If the immigrant petition is approved, the foreign national then may apply for permanent residence either through adjustment of status or consular processing.
For How Long is the Labor Certification Valid?
Generally, an approved LC is valid indefinitely for a specific employer, position, and location. If any of these factors change, the LC may become a useless document.
Under legislation passed in October 2000, however, individuals who have applied for adjustment of status and whose cases have been pending for 180 days or more may change jobs or employers without affecting the validity of the underlying immigrant petition and LC, as long as the new job is in “the same or similar occupational classification” as the job in the original petition and LC.
An approved LC is proof that there is a shortage of U.S. workers. It is only a first step in the permanent residence process (commonly called Green Card).
It does not give authorization for a foreign national to remain in the United States.
It does not “legalize” anyone’s stay in the United States.
It does not grant permission to work.
It does not guarantee permanent residence.
Types of Permanent Labor Certification Procedures
There are different ways to file a case, and different ways the DOL categorizes a case. All cases are initially filed with the state workforce agency (SWA). SWAs assist DOL, which makes the ultimate decision to grant or deny a case.
Reduction in Recruitment (RIR)
RIR processing can drastically reduce processing times. To qualify, there must be little or no U.S. worker availability for the relevant occupation, the job offer must contain no restrictive requirements, it must be offered at the prevailing wage, and adequate recruitment must have been conducted within the last six months through sources normal to the occupation and industry, including print media ads.
In cases where no recruitment has been conducted, an application is first screened by the SWA, which will require the applicant employer to conduct supervised recruitment for the position. Once the recruitment is complete, the employer submits an analysis of why no U.S. applicants qualified for the position. The case is then forwarded to DOL for review.