The labor certification process is a typical method for an employer to sponsor a foreign national for permanent resident status in the United States (i.e., the employer sponsors the foreign national for a "green card").

The purpose of the labor certification process is to ensure that foreign nationals do not take jobs away from "qualified U.S. workers", or U.S. workers who can do the job for which the foreign national is being sponsored. In certain limited circumstances, a foreign national need not apply for a labor certification.

The labor certification process is a three step process. The first step is to file a "labor certification application" with the U.S. Department of Labor ("DOL"). This first step demonstrates to the DOL that there are no "qualified U.S. workers" to fill the position being offered the employee being sponsored. The key to this step is the recruitment process. The sponsor must either show that it has advertised for at least six months prior to filing the labor certification application; or, for certain jobs, advertise for the position being offered for three days in the local newspaper and interview any qualified applicants. The other alternative is to allow the state where the position is located to advertise for the position. However, this later approach is considerably slower than the first, or "reduction in recruitment" ("RIR") process.

Once the DOL approves the labor certification application, an immigrant visa petition is filed with the Immigration and Naturalization Service ("INS"). This second step focuses primarily upon whether the sponsoring employer can afford to pay the foreign national being sponsored the prevailing wage for the position in question.

Once the foreign national's immigrant visa petition is approved, (s)he can apply to adjust his/her status from a nonimmigrant status to an immigrant status. This is the final step which results in a sponsored foreign national getting his/her green card. Because a company is sponsoring a foreign national, it may not be necessary for the foreign national to be interviewed by the INS before obtaining his/her green card.

This last step is sometimes delayed for many years while the foreign national waits for an immigrant visa to be available. Only a certain number of immigrant visas are made available to foreign nationals from each country. Certain countries that have many people trying to immigrate to the United States, such as India and the peoples Republic of China, may wait many years for an immigrant visa to be available. to check what date the U.S. State Department is working on for immigrant visas, please click here to check the State Department's Visa Bulletin.

The DOL, through the Employment and Training Administration ("ETA"), has provided a form called "Application for Alien Employment Certification." The employer files the Application, in duplicate, with the State Employment Service Agency ("SESA"). The application contains some general information and more importantly, a job description and a list of the requirements for the job. Depending on the state, it is filed either with the local office, or with a special alien employment office of the state Department of Labor.

The SESA performs a ministerial role for the DOL and may also provide guidance to employers to insure that DOL guidelines are followed. Some SESA offices become very heavily involved in the process. Upon the filing of an application with the SESA office, a priority date is assigned. The priority date signifies the alien’s place in the queue for an immigrant visa (or "green card"). The priority date may become important in the later stages of an application.

After the filing of the application with the SESA office, certain challenges or deficiencies may arise. The challenges may be over the wage offered, a requirement imposed, or any number of other items. The employer is given an opportunity to respond to the challenge. Following the response, the SESA may do one of two things. First, it may begin the recruitment phase (discussed below). Secondly, it may refer the file to the Regional DOL for a determination as to the adequacy of the response before commencing the recruitment phase. Once the recruitment period begins, a job order, based on the job description, is placed in the computerized "Job Bank." The state Department of Labor will refer applications to the employer. The job order remains in the state Job Bank for a minimum of thirty days. During that time, advertisements are required to be run by the employer in an appropriate publication referring applicants to the state Job Service. The employer is also required to post the position internally.

It is sometimes possible to bypass the advertisement using the "Reduction in Recruitment" (or "RIR") process. In order to be successful, an employer must demonstrate a "pattern and practice" of recruitment which proves a shortage of qualified U.S. workers. All new labor certification cases will be analyzed to determine if the reduction in recruitment method can be utilized.

At the conclusion of the recruitment period, the employer files a summary with the SESA showing the results obtained during the recruitment period. The application s then forwarded by the SESA to the Regional Certifying Office of the US. Department of Labor. The regional office then makes a determination based upon all the information provided as to whether or not the job should be certified.

1) The Job Description Listed in the Labor Certification Forms

The job opportunity must be described without unduly restrictive requirements. Requirements which seem tailored to the alien’s specific education or experience will be rejected. Foreign language requirements will be reviewed very carefully, and an employer must be able to document the business necessity for such a requirement. Any qualification required beyond those normal to the occupation will be scrutinized carefully and the employer will have the burden of providing a bona fide business necessity for such additional qualification.

2) The Prevailing Wage for the Position Offered

The government will make a determination as to the prevailing wage for the job offered. The employer must offer the prevailing wage for the position being offered in the same geographic area. The employer will have the opportunity to meet the prevailing wage if the government determines the wage offer is too low. The employer may also challenge the wage determination and present countervailing evidence.

3) Advertising the Position Being Offered

An advertisement will be placed in a newspaper of general circulation for three consecutive days, or in a professional publication or other national publication, if appropriate, to the particular position. The requirements for the contents of the advertisement are specific, and will include a description of the job, the employer’s requirements, the wage, and a referral to the state Job Service. This type of advertisement is not necessary, however, if the employer can show a "pattern and practice" of recruitment over the six months prior to filing the labor certification application.

4) Responses to Resumes Received During Recruitment Phase

As part of the application, the employer certifies that the job opportunity has been and is clearly open to any qualified U.S. worker. The employer is responsible for keeping a record of all applicants, and documenting why they are not available or qualified for the position, if that is the case. Where an applicant is clearly unqualified from his or her resume, then they may be so informed by letter. If they are not clearly unqualified for the position, they must be interviewed. The labor certification will not be issued if there is a qualified U.S. worker available for the job, whether or not the alien is more qualified.

5) Posting and Notice During the Recruitment Process

Notification to a union representative or bargaining agent that a labor certification application has been filed must be made if a union exists for workers in the classification and area in which the alien is to work. If no union exists, a notice must be conspicuously posted at the job site. The notice must contain a description of the position as well as the salary offered. The posting of wage information is contrary to practices and policies of many employers. However, there is no waiver available for this requirement.

1) The Sponsoring Employer's Role

The employer has ultimate responsibility for the application and process. The employer must provide clear and complete information, review and sign prepared documents, review resumes from prospective applicants and interview persons who appear qualified.

2) The Foreign National's Role

The foreign national is merely the beneficiary of the process. They must provide information relating to their background and sign the application. They may be kept informed of the process but they are not to be directly involved. They may not be involved in reviewing resumes or rejecting potential workers.

3) The Attorney's Role

Hammond & Associates' role is to apply the constantly changing laws and regulations in this area to the particular facts in each client’s case. We will help analyze the possibilities of a successful application. We will also help prepare a realistic and accurate statement of qualifications and meet other requirements. We guide the employer through the entire process, keeping the employer informed of its obligations with regard to recruitment and responses. We, of course, cannot guarantee what the results will be of any particular test of the job market.

A labor certification filed with the U.S. Department of Labor (DOL) using the DOL's Labor Certification Application Form, or Form ETA-750. The labor certification is processed by the Regional Office of the DOL that has jurisdiction over the place the sponsored job is located. For information on the DOL Regional Offices, click here.

Once the labor certification application is approved, an I-140 immigrant visa petition is filed with the INS Service Center that has jurisdiction over the place the sponsored job is located. For information on the INS Service Centers, click here. The foreign national can include his/her spouse and dependents under 21 years old on his/her form I-140. For a listing of information required for an I-140 petition, click here.

Once the I-140 petition is approved and an immigrant visa is available (i.e., there is no backlog of immigrant visas), the sponsoring family member will file an INS Form I-485 to request an adjustment of his/her status from "nonimmigrant" status to "immigrant" status. For a list of information required for an employment-based I-485 application, click here.