Index:
Definition
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 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 Time Frame
Process
H-1B Specialty (Professional) Workers
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.
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.
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."
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.
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.
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.
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