OUTLINE OF LABOR CERTIFICATION PROCEDURE
The Immigration law permits employers to sponsor employees for permanent resident alien status, commonly referred to as a “green card”. To obtain permanent resident status for an employee on the basis of employment, the employer must first obtain a certification from the U.S. Department of Labor that there are no United States workers ready, willing and qualified to fill the position being offered. To obtain this certification, a U.S. employer must advertise the position and recruit U.S. workers for the position. The labor certification procedure is intended to assure that there are no qualified U.S. workers available to fill the position and that the employer is not offering below average wages or working conditions to a foreign national that will adversely affect the wages or working conditions of U.S. workers.
As stated in the first paragraph, to qualify for “labor certification” from the U.S. Department of Labor, the employer must demonstrate that it has attempted to recruit U.S. workers for the position through sources normal to the occupation and that its efforts have been unsuccessful. If any U.S. worker who meets the firm’s minimum education and experience requirements applies for the position, a certification will not be issued.
The labor certification procedure involves the preparation and filing with the Department of Labor of an Application for Alien Employment Certification. The labor certification application is completed by the employer and contains the job description for the position and the minimum education and experience requirements needed to perform the job duties, as well as any special requirements. A statement of the employee’s qualifications is completed by the employee and sets forth all of the employee’s education and related experience. This application must demonstrate not only that the employee is qualified to meet the minimum requirements of the position, but that the employee met these requirements at the time he or she was initially offered the position.
At a minimum, the recruitment process involves the placement of the advertisement in a local newspaper for 2 Sundays, the posting of a job offer in a conspicuous place on the employer’s premises for a period of ten consecutive business days, placing of a job order with the State Department of Labor for 30 days and, for professional positions, three other forms of recruitment.
During the recruitment period, the employer will be required to keep a record of all applicants and interview those who appear to be qualified for the position. The only reason an applicant may be rejected is if the applicant does not meet the experience, education or other special requirements of the position. The employer’s recruitment efforts must be documented in writing and must set forth the name and address of all applicants who have applied for the position and the reasons for not hiring. Copies of any resumes received from applicants who respond to the advertisement must also be kept by the employer. If no U.S. workers are qualified for the position and the requirements for the position are not challenged by the U.S. Department of Labor, the application should be approved and certification obtained. Additional documentation will then be prepared and filed with the United States Citizenship and Immigration Services. The U.S.C.I.S. will also require that the employer submit financial documentation that will show that it has sufficient profits to pay the employee’s salary.
The Department of Labor requires the employer to approach the labor certification process as though it is willing to hire a U.S. worker if one is qualified and available, although it will not force the employer to hire such a worker, if one is located. The employer 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 for labor certification purposes. Nor may the attorney or foreign national participate in interviewing or evaluating U.S. job applicants.
A principal distinction between the labor certification recruitment process and the normal hiring practices of most employers is that under the labor certification process a U.S. worker who applies for the job and meets its minimum requirements is considered qualified for the job even if the foreign national is more qualified. While most employers seek the most qualified candidate for a job, labor certification procedures mandate that an applicant meet only minimum requirements to be considered qualified. The key to a successful application therefore rests upon the experience, education and other special requirements an employer has for the position, as these requirements will form the basis of the recruitment process that is to be conducted to determine whether qualified U.S. workers are available to fill the position. If the minimum requirements are such that it is unlikely that a United States worker will be qualified for the position, then the application should succeed.
As attorney for the employer, my office will assist the employer in taking the necessary steps to file an application. Those steps are outlined on the attached check list.
