Labor Certification

(for employment-based permanent residence)

OVERVIEW

Labor certification is a statement from the US Department of Labor (USDOL) that a particular position at a particular company is “open” because no US workers who satisfy the minimum requirements for the job are available. An alien seeking to immigrate to the US on the basis of employment must obtain an offer of permanent full-time employment from an employer in the US. Such alien cannot be admitted as a permanent resident unless, among other things, the employer obtains a labor certification from USDOL that qualified US 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 US workers.

The labor certification process requires the employer to recruit US workers at prevailing wages and working conditions through the State Employment Service, by advertising, posting notice of the job opportunity, and other appropriate means. A USDOL 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 USDOL regulations. Most employers of unskilled workers, for skilled workers, and for professional workers need to obtain labor certification before petitioning USCIS for for permanent residence for those workers based on for employment.

Exceptions exist for aliens in shortage occupations (for registered nurses, physical therapists, sheep herders and those demonstrating “exceptional ability” in business, science, or arts), aliens demonstrating to USCIS that they possess extraordinary ability, aliens who are multinational executives or managers, aliens whose work is deemed in the “national interest,” and aliens who are outstanding university level teachers and researchers in tenure-track jobs. Petitions naming beneficiaries who hold such positions, which are considered unique and do not displace American workers, do not require labor certification.

The Law Office of Paul B. Christensen would be pleased to assist your company with securing labor certification for a prospective alien employee. Oftentimes, the key to DOL approval of labor certification rests with a carefully-drafted labor plan. The state’s DOL confirms that the wage offered for the position is the “prevailing wage” and reports whether the salary must be increased to satisfy prevailing wage requirements. The state DOL then approves 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, the names of persons who applied for the job (if any), and why such applicants were not qualified.

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