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Labor Certification

Index:

Definition
Labor certification is a statement from the U.S. Department of Labor (DOL) that a particular position at a particular company is "open" because no U.S. workers who satisfy the minimum requirements for the job are available.

Alien labor certification programs are generally designed to assure that the admission of aliens to work in this country on a permanent or temporary basis will not adversely affect the job opportunities, wages and working conditions of U.S. workers. With few exceptions, these five programs are jointly administered by the Department and the State Employment Security Agencies (SESAs). A synopsis of each of the programs follows.

Permanent Labor Certification Program
An alien seeking to immigrate to the United States on the basis of employment must obtain an offer of permanent full-time employment from an employer in the United States. The alien cannot be admitted as a permanent resident unless, among other things, the employer obtains a labor certification from the Department that qualified U.S. workers are not available for the employment offered to the alien, and that the wages and working conditions offered will not adversely affect those of similarly employed U.S. workers.

The labor certification process requires the employer to recruit U.S. workers at prevailing wages and working conditions through the State Employment Service, by advertising, posting notice of the job opportunity, and by other appropriate means. A Departmental regional certifying officer makes a decision to grant or deny the labor certification based on the results of the employer's recruitment efforts and compliance with Departmental regulations.

Who Needs Labor Certification
 Most unskilled workers, skilled workers and professional workers need to obtain a labor certification before applying for a green card. Exceptions exist for: (1) persons in shortage occupations (registered nurses, physical therapists, sheep herders and those demonstrating "exceptional ability" in business, science or arts) as defined by the Department of Labor; and (2) persons demonstrating to the U.S. Immigration and Naturalization Service (INS) that they possess extraordinary ability, are multinational executives or managers, or persons whose work is deemed in the "national interest." Persons holding such positions, which are considered unique and therefore do not displace American workers, may apply directly to the INS for a green card. Some outstanding university and college teachers and researchers in tenure-track jobs may avoid labor certification. Other college teachers and researchers may benefit from a fast-track form of labor certification called "special handling."

Time Frame
The time required to obtain a labor certification can range from several months to two years, depending on the location of the job. Labor departments in New York, California and Illinois are particularly backlogged.

Process
To obtain labor certification, an employer and a foreign national employee together submit a completed application form together with documentary evidence to the state DOL. The state DOL confirms that the wage offered for the position is the "prevailing wage" and informs the employer whether the salary must be increased to satisfy prevailing wage requirements. The state DOL then okays an advertising strategy and sends the application to the local DOL. At the local DOL office, the job is listed as "open" in the state computerized job bank, and the employer is instructed to place an ad in a specified journal or newspaper. The ad will ask applicants for the position to apply directly to the local DOL. The local DOL screens applicants and refers seemingly qualified applicants to the employer. The employer must promptly interview all seemingly qualified applicants. The employer must also consider and interview if necessary any other applicants who, through the job bank listing or pure chance, apply for the position. The employer then files a recruitment report with the local DOL explaining why the ad placement was appropriate, who applied for the job, if any, and why these people were not qualified.

H-1B Specialty (Professional) Workers
 Employers who intend to employ alien workers for a temporary period in professional occupations or as fashion models must file labor condition applications with the Department stating that they will pay the appropriate wage rate to the alien, that they have notified the bargaining representative or otherwise posted notice of their intent to employ alien workers, and that there is no strike or lockout at the place of employment. Aggrieved parties may file complaints with the Department regarding misrepresentation or failure to comply with the statements attested to in the application.

H-2A Nonimmigrant Agricultural Workers
 The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant aliensto the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before the INS can approve an employer's petition'for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.

H-2B Temporary Nonagricultural Labor Certifications
 Under the H-2B nonimmigrant visa classification, aliens may come temporarily to the United States to perform temporary nonagricultural work. The process for obtaining an H-2B labor certification is very similar to that required for permanent labor certification, but is not as extensive or time consuming. The labor certification may be issued for a period of up to one year, renewable for a maximum of three years. The Immigration and Nationality Act places a limit of 66,000 per year on the number of aliens who can be admitted to the U.S. on H-2B visas.