Labor Certification

Labor certification is confirmation from the Department of Labor that an employer has proven two things:

  1. There are not sufficient U.S. workers available for a particular position; and
  2. The person who is trying to immigrate based on employment will be paid the prevailing wage.

An approved labor certification merely shows that the Department of Labor has determined that there is a shortage of United States workers for a particular position. It does not provide work authorization, nor does it legalize or extend a person’s stay in the United States. If a candidate is legally in the United States and has work authorization (as an H-1B temporary worker, for example), the candidate will need to maintain that work authorization until the permanent residence process has been completed. Again, an approved labor certification is merely the first, very important step towards permanent residence.

Within six months of its issuance, a labor certification must be submitted to U.S. Citizenship and Immigration Services in support of a Form I-140, Immigrant Petition for Alien Worker. For continuing validity of the labor certification, the employer must remain willing to hire the alien candidate and continue to do business in the same location, and the job offered must remain the same.

Requirements

A candidate for labor certification must demonstrate the following:

  1. The candidate has an employer. There must be a United States employer willing to offer full-time employment. An alien in business for himself may not file a labor certification on his own behalf.
  2. The employer is willing to pay the prevailing wage. The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.
  3. The candidate has a set of skills that are not in abundance in the United States. The primary purpose of the labor certification process is to show a shortage of United States workers. For this reason, persons with no skills, education, or experience that are out of the ordinary will generally find it very difficult, if not impossible, to obtain a labor certification.
  4. The candidate has a position that requires those skills. The alien’s mere possession of a set of skills will not ensure a labor certification. There must be a job that requires the use of those skills.

Pre-Filing Recruitment Steps

The U.S. Department of Labor’s regulations provide detailed requirements for the recruitment effort that an employer must undertake prior to filing an ETA 9089 form. Nearly all of the recruitment steps must take place between 180 and 30 days prior to the filing.

Specifically, an employer is required to give sufficient notice of the job opportunity to its current employees, place a state job order with the State Wage Office for 30 days, and advertise the position in a newspaper of general circulation in the area of intended employment. If the job offered is one for which the DOL has determined that a bachelor’s or higher degree is a usual education requirement, at least three additional recruitment steps must be selected from a list of alternatives including web-based recruitment, job fairs, on-campus recruitment, private employment firms, and trade or professional publications.

An important consideration during this process is the job offer and actual minimum requirements. The stated job requirements will affect the prevailing wage determination as well as demonstrate the actual skills required for the job. If there are too few requirements in the job offer, many United States workers may appear to be qualified, but with too many requirements, the Department of Labor may find that the employer’s requirements are too restrictive and deny labor certification. Determining the job requirements can therefore be a difficult balancing act.

Processing Labor Certification

In 2005, the Department of Labor enacted the so-called “PERM” rule. Employers and their authorized representatives must complete and file the new form Application for Permanent Employment Certification (ETA 9089) electronically. A priority date is assigned on the date the electronic submission is accepted for filing. Because no supporting documentation is filed with the ETA 9089, the employer must maintain supporting documentation in the event an audit is required.

Filing Labor Certification with an Immigrant-Worker Petition

Once the labor certification has been approved, it must be submitted to USCIS within six months in support of a Form I-140, Petition for Immigrant Worker. At the visa-petition stage, two primary factors must be proven to the Immigration Service:

  1. The candidate meets all of the employer’s requirements for the position that were listed in the labor certification; and
  2. The employer can pay the salary being offered.

Applying for Permanent Residence

If a candidate is eligible to apply in the United States and a visa is available under the appropriate preference category, the candidate may apply to adjust his or her status to that of an LPR concurrently with the filing of a visa petition. If the candidate’s priority date has not been reached at the time the visa petition is filed, the adjustment application may be filed when the visa becomes available. If the candidate is not eligible to apply for adjustment of status, he or she must process final paperwork outside the United States and have a visa interview abroad, usually at the U.S. embassy in the candidate’s country of residence or citizenship.