Mark A Ivener, A Law Corporation

Labor Certification

See also, PERM Frequently Asked Questions.

An Overview

There are several avenues available to aliens who seek to become permanent residents of the United States. Generally speaking, an individual must be a close relative of a U.S. citizen or permanent resident, or have recognized “extraordinary ability” in the sciences, arts, education, business, or athletics, or have a firm job offer which cannot be filled by a legal U.S. worker. Certain multinational executives or managers, investors, religious workers, and others may also be eligible to obtain permanent resident status. These avenues will be discussed in the following chapters. This chapter will cover firm job offers which cannot be filled by a legal U.S. worker. This is called Labor Certification processing for permanent residence (also called “Green Card”).

What is a “Labor Certification”?

A Labor Certification application is the official form for a firm job offer by a U.S. Employer to assist an alien in obtaining permanent resident status. It demonstrates that 1) a valid job exists, and 2) there are no qualified U.S. workers available to fill the position. The Labor Certification application is handled entirely through the U.S. Department of Labor (DOL), independently of the U.S. Citizenship and Immigration Service (USCIS). Once a Labor Certification has been approved by DOL, it is then submitted to the USCIS as the basis for permanent residency. The principle object of the Labor Certification is to ensure that the alien will not displace any U.S. workers. For this reason, the application requires the employer to conduct recruitment for the position. The application consists of (a) a job offer form, signed by the employer, which fully describes the job duties, salary, and minimum education and experience requirements for the position, (b) a statement of qualifications of the alien, signed by the alien (c) documentation of the alien’s education and experience, (d) a proposed advertisement, and (e) an internal posting notice at the employer’s company. The job must be advertised in the newspaper or a professional journal, and posted at the place of business. If the employer can demonstrate that no U.S. workers are qualified or available for the position, and that the job offered corresponds to DOL regulations, then a Labor Certification is issued.

How does the Labor Certification work?

The initial Labor Certification application consists of the job offer form together with the supporting documentation and the statement of qualifications of the alien, with his/her experience documented. This application is filed at either the State Employment Service (SES), or the local branch of the DOL, where the employer is located. The salary and experience requirements are closely scrutinized by SES specialists. If the salary is below the prevailing wage standards, the employ will be asked to amend the wage to meet the prevailing wage, of justify the salary offered. The SES also insists that the experience required is not excessive. The SES then institutes a 30-day job order recruitment period. The position (including salary) will be advertised for three days in either a newspaper of general circulation or a professional journal. The ad will not identify the employer’s name, address, or telephone number. Applicants will be advised to forward their resumes to a post office box number belonging to the SES. The SES records the names and addresses of those responding, and then sends the resumes to the employer for review and interview of qualified applicants. If a person is clearly unqualified on the basis of his/her resume, the employer may send these persons a letter stating that they are not qualified without an interview. If an applicant may be qualified, the employer must interview him/her (telephonic interview may be acceptable), and give a lawful, job-related reason why he/she is not qualified. In addition, at the time of filling the application, the employer must notify his employee’s bargaining representative that a labor certification is being filed. If there is no bargaining representative, the employer must notify his employees by posting notices of the job opening (including salary) at his place of business for ten working days. At the end of the 30 day recruitment period, the employer will be asked to account for all persons referred from the SES, and give the results of the job posting. Immediately following the recruitment period, the entire Labor Certification application is sent to DOL for final determination. This process takes a few years to complete, depending on the backlog of cases at DOL and in which city the Labor Certification is filed. If DOL finds no problem with the application, a Labor Certification is issued. If there are any problems, a Notice of Findings is issued, and the employer is given the opportunity to correct any deficiencies in the application or to rebut the findings. After the Labor Certification has been approved, the next stage of the processing is filing a visa petition (FORM I-140) with the Immigration Service (USCIS) as set forth in the next chapter.

Reduction in Recruitment (RIR)

If the employer has made numerous attempts to recruit for the position prior to filing the Labor Certification application, Department of Labor (DOL) regulations will allow the employer to request a reduction in the regular recruitment process. These recruitment efforts must have been made within the six months before filing the Labor Certification, and must have been sufficient to adequately test the labor market. When submitting the request for an RIR, the employer should include documentary evidence of their recruitment efforts, including a copy of at least one to six advertisements depending on the DOL region. If recruitment was attempted through an employment agency, the Internet, job fairs, etc., evidence of these attempts should also be included. The employer should include a list of all the responses to the recruitment, as well as the reasons why none of the applicants were hired. The SESA will forward this information to the regional Department of Labor office for a determination on the request for an RIR. If the request is granted and the application is otherwise in order, it will be approved generally within a few months.

What are the responsibilities of the Sponsoring Employer?

It is essential that the employer have a good-faith intent to hire the alien on a permanent basis once permanent resident status is granted. At the outset, of course, the employer must sign the job offer form and provide any information needed concerning the job duties, experience required, etc. If SES requests salary or experience amendments, the employer will be asked to sign the amendments and return them on a timely basis. The most crucial area of responsibility for the employer is the recruitment effort. The employer must notify his employee’s bargaining representative that a Labor Certification is being filed. If there is no bargaining representative, the employer must notify his employees by posting notices of the job opening at the place of employment for ten working days, the job posting must contain the job title, a detailed description of the job duties, the education and experience requirements, the salary and hours of the job, and the name and telephone number of the person to contact at the business for more information. In addition, the employer must account for every individual referred by SES as a result of the aforementioned three-day advertisement. If the person is clearly unqualified, the employer must document the rejection of the applicant with valid job-related reasons. If a person may be qualified, on the basis of his/her resume, the employer must conduct an interview, and then give lawful, job-related reasons why the person is not qualified. The results of the internal posting must also be submitted at the end of the recruitment period. Once the recruiting has been completed, no further paperwork is required until the Labor Certification has been approved by the DOL. At that time, the employer will be asked to sign Form I-140, “Petition for Alien Worker”. This form is merely a summary of the job offer, and the employer will then be asked to provide evidence that the U.S. employer has the ability to pay the wage offered. The evidence will be in the form of copies of annual reports, federal tax returns, or audited financial statements. The alien will be granted permanent resident status after passing an oral interview with a Consular Officer in a foreign country or an Immigration Officer in the U.S. Just prior to the date of interview, the employer will be asked to provide a brief letter verifying his/her intent to employ the alien on a permanent basis according to the terms stated in the Labor Certification application.