An alien who wishes to immigrate to the U.S. (or adjust status) under the second or third employment-based preference categories must first obtain an offer of permanent full-time employment from a U.S. employer. Under the Immigration and Nationality Act, before an alien can obtain permanent residence (a green card) through such a job offer, the employer must first obtain a "labor certification" from the U.S. Department of Labor (DOL). In short, a labor certification is an official finding from the DOL that there are no qualified U.S. workers available in the area of intended employment for the position offered to the alien AND that employment of the alien will not adversely affect the wages and working conditions of U.S. workers who are similarly employed. In this process, the employer is required to make a good faith attempt to recruit U.S. workers at wages and working conditions which are prevailing in the geographical area for the type of work which alien will be performing for the employer.
The Labor Certification process starts with the employer filing an "Application for Alien Employment Certification" with the local (state) employment office. Once it is received, it is given a log-in date which will become the "priority date". The priority date is extremely important, as, it may determine (in the case of preference-based immigrant petitions which are later filed with the INS) when the alien applicant is eligible to apply for permanent residence. In order to show that U.S. workers are in fact unavailable for the job, the job offer (including the rate of pay) must usually be publicly advertised in a local newspaper of general circulation. In some cases, an employer may advertise the position before filing the Labor Certification Application, as long as it was done no more than 6 months before filing. This process is known as "Reduction in Recruitment", or "RIR". Through RIR, applicants will contact and respond directly to the employer, who in turn, will report the results to the DOL. If the employer employs more than 1 person, a notice regarding the availability of the position must also be posted for 10 consecutive business days at the job site.
The job duties and requirements contained in the ad are supposed to be consistent with those contained in the Dictionary of Occupational Titles ("DOT") which is published by the DOL. It is mandatory that the job be advertised only with the minimum requirements that are actually necessary to perform the job satisfactorily. In other words, the employer may not require experience or education which are not normally required to perform the job. Such excessive requirements are said to be "unduly restrictive". However, there is a "business necessity" exception to this rule which applies whenever the employer can specifically show that the particular job requirements bear a reasonable relationship to the occupation in the context of the employers business and are essential to perform the job. Requirements which are routinely identified by the DOL as restrictive requirements include foreign language requirements, requirements which combine the job duties of two or more distinct occupations contained in the DOT, requirements for skills or training that is unavailable in the U.S., experience in excess of the amount indicated in the DOT, and a requirement or a college or university education for a non-professional job. The employer's advertisement will not give the name or address of the employer. Instead, it must refer any interested applicants directly to the local DOL office; that office will then refer the applicants back to the employer. Through this process, the local DOL is able to monitor the employer's recruitment efforts. The job offer will also be kept in a "job bank" at the local DOL office for 30 days.
The employer is responsible for interviewing any persons who respond to the ad. The DOL requires that the employer interview, at least telephonically, any person interested in the position - unless that person is clearly not qualified from a review of that persons resume or credentials. A list must be kept of applicant responses, their phone numbers and addresses. Under DOL regulations, applicants may only be rejected for lawful, job-related reasons. These reasons include, but are not limited to: failing to provide documentation or prior paid experience, lack of or inadequate references, refusal to accept the wage offered, refusal to accept the hourly work schedule. The employer must document all of the recruiting efforts made in connection with the advertisement and prepare a submission to the DOL which explains the results of the effort. By documenting the recruitment efforts and submitting lawful job related reasons for the rejecting any and all applicants, the employer demonstrates to the DOL there are no qualified U.S. workers, and thus that the alien-applicant is best suited for the position.
Once the local DOL has approved the Labor Certification Application, it is then forwarded to the Regional Certifying Officer (which has jurisdiction over your geographic region) of the federal DOL. If the federal DOL approves the application, it is then deemed "certified". From there, the alien applicant may file an immigrant visa petition with the INS. The visa petition must establish which of the employment-based immigrant categories the beneficiary qualifies to immigrate under and that the alien beneficiary has documents showing that he or she meets all of the minimum job requirements. The INS will also request proof of the employer's ability to pay the wage offered. An annual report or income tax return will usually satisfy this requirement. An approval of an immigrant visa petition takes approximately three months to one year. It is important to note, however, that an approved labor certification ONLY establishes basic eligibility for employer-based immigrant classification. It does not give immediate employment authorization to the alien for the position nor does it authorize the alien to enter or remain in the U.S. Thus, an alien who is the beneficiary of an approved labor certification may not (on the basis of that approval alone) obtain authorization to work in the U.S. Such authorization must be applied for and granted by the INS based upon an independent ground of eligibility.
The final step in the process is the application for permanent residence (adjustment of status) in the U.S. or consular processing at a U.S. Embassy abroad. This step does not require the participation of the employer. Eligible family members may also apply for permanent residency status at such time.
Labor Certification - Memo to Clients
Labor Certification - List of Skilled Labor Positions
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