Labor Certification Procedure and the Employer's Role

The first stage of employment-based immigration is the individual labor certification. The labor certification is the means by which the Department of Labor fulfills its obligation to the American people to ensure that the immigration of a foreign national on the basis of an employment offer will not adversely affect the wages and working conditions of U.S. workers. Because of the heavy workload of the U.S. Department of Labor ("DOL") and State Employment Security Agencies ("SESAs"), currently it takes more than three years to complete the labor certification process. However, if the employer makes reduction in recruitment ("RIR") requests on labor certification applications (See another document entitled "Reduction in Recruitment Requests"), the procedure can be shortened to approximately one year.

I. The regular recruitment phase of the individual labor certification process consists of three distinct actions taken to test the job market for U.S. workers. These actions are:

1. A thirty day Job Order in the SESA’s computerized job bank;

2. A notification to the employee’s bargaining unit at the place of intended employment, or, in the absence of such a bargaining unit, a ten-day on site posting of the position vacancy; and

3. Placement of an advertisement for the position vacancy in a local newspaper of general circulation for three consecutive days (often inclusive of a Sunday) or a one-time ad in an industry-appropriate professional magazine or trade journal. The DOL or the SESA may designate the advertising medium to be used.

The employer will need to be involved in the above actions.

II. Respondents to the ad will be referred to the state labor department, which will send their resumes to the employer. I will help you evaluate the resumes to determine those applicants who are not qualified and those who could be qualified based on the information provided. The ones who could be qualified will need to be contacted by the employer for the purposes of clarifying whether they actually have the minimum qualifications for the job or to schedule an in-person interview with them. It is very likely that at least some job applicants will need to be interviewed, and the interviews should be conducted at the employer’s offices. Remember that the employer must conduct this process as though the job is open to any qualified U.S. worker.

III. Once the interviews are complete, I will help you in the evaluation of the recruitment results. U.S. job applicants can be rejected only for reasons that the Department of Labor ("DOL") considers "lawful" and "job-related." I will explain what those terms mean, and assist you in the preparation of a recruitment report explaining why each job applicants was rejected. This report, however, must come from the employer.

IV. If all of the U.S. job applicants are rejected for lawful, job-related reasons, the recruitment is closed and the application is sent by the state labor department to the U.S. DOL for final decision. It is common for the DOL to raise questions about the application, even though the state labor department did not raise any questions. The questions are in the form of a "notice of findings," which will state that the application will be denied unless suitable responses are made. I will assist in the preparation of a response to the notice of findings, if any.

Purpose of the Labor Certification Procedure

The labor certification procedure is intended to assure that the employer is not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that the employer has not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers. If the labor certification procedure locates any U.S. workers who meet your minimum requirements (see below) for the position, you will not be permitted to obtain permanent residence for the alien applicant.

The DOL requires you to approach the process as though you are willing to hire an American worker if one is qualified and available. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, you may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes.

One requirement of the DOL is particularly worth explanation: that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification. This requirement is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job's minimum requirements. Because of this distinction, the labor certification procedure seems peculiar to many employers.

Most employers already have established "minimum" requirements for the job. These requirements for most employers are established in vague or broad terms and are set at a basic level, in order to attract the maximum number of job candidates, giving the employer great flexibility in choosing the most qualified person among those candidates. The requirements are set knowing that the person actually hired will have some combination of qualifications beyond the employer's stated requirements, making that person the most qualified out of the applicants. It is virtually a certainty that a person who just meets the stated requirements will not be hired.

On the other hand, the DOL requires that any U.S. job applicant who meets the minimum requirements for the job be considered qualified, and it is this standard which governs whether the labor certification application can be approved.

Although I will do everything possible to make the process as painless as possible for the employer and to assure that it causes minimum disruption to the employer’s business, employer’s active involvement, interest, and cooperation throughout the process is necessary for the successful conclusion of the case.
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