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Labor Certification |
Obtaining Labor Certification and an Immigrant Visa Based Upon an Offer of Employment.
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| by Christopher
A. Kerosky, Esq. |
Immigrant visas ("green
cards") are available to persons whom the Department
of Labor (DOL) certifies as having an offer of permanent,
full-time employment (at least 35 hours per week) for a job
for which there is a demonstrated shortage of qualified U.S.
workers. When testing the labor market for qualified U.S.
workers, DOL generally requires that the wage offered be within
five percent of the "prevailing wage" for the type
of work to be performed. DOL determines the current prevailing
wage for jobs in particular geographic areas based, in part,
on the amount of experience required by the employer. In addition,
an employer's job requirements and the duties performed must
be reasonable and not deemed "unduly restrictive"
by DOL. Any special requirements must be justified.
There are currently three methods for obtaining
labor certification:
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Standard Labor Certification.
Initially, a standard labor
certification application is processed by the local DOL office.
Thereafter, DOL issues instructions to prepare three newspaper
advertisements for publication in a newspaper of general circulation
unless the position is so technical that a professional journal
is more appropriate. These advertisements are to test the
labor market for qualified U.S. workers and must refer any
interested applicants directly to the local DOL office. That
office then refers any applicants to the employer. For a thirty-day
period the job offer also is placed in the job bank of the
local DOL office. Finally, a notice regarding the availability
of the job also must be posted for ten consecutive business
days at the job site. Only qualified applicants must be interviewed
and they can be rejected only for lawful, job-related reasons.
Employers are not obligated to hire qualified U.S. workers.
However, labor certification cannot be granted if DOL determines
that there are qualified workers available or if the employer
violates DOL rules.
The results of the recruitment effort must be
forwarded to the local DOL office. This must include the original
tear sheet of newspaper advertisements, copies of all resumes
or applications received, the internal posting notice and
job-related reasons for rejecting applicants. The labor certification
application is transmitted by the local DOL office to the
regional DOL office for a decision. The current average processing
time at DOL varies from twelve to twenty-four months. Occasionally,
DOL issues a Notice of Findings, which is a notice of alleged
deficiencies which must be corrected before labor certification
can be granted. |
Reduction In
Recruitment Processing.
Reduction in Recruitment (RIR) is a process whereby cases
which meet certain criteria are given priority processing
by local and regional DOL offices. DOL accepts, processes
and gives priority treatment to RIR requests filed in connection
with applications which meet the following criteria:
- There is little or no U.S. worker availability for the
occupation.
- There are no restrictive requirements.
- The job is offered at the prevailing wage.
Adequate recruitment" has been conducted through "sources
normal to the occupation and industry" within six months
of filing with DOL.
There is little or no U.S. worker availability for the
occupation: Satisfying this essential factor depends upon
the area in the United States where services are to be rendered,
as well as the rate of unemployment there for a particular
occupation. Historically, shortage occupations have included
computer professionals (except entry-level positions and
programmers), cooks, automobile mechanics, auto body repairmen,
household workers, tailors, seamstresses, hairstylists,
secretaries, pharmacists, occupational therapists, janitorial
supervisors, and, positions that have a foreign language
requirement (except Spanish). In theory, RIR processing
is available for any position if an employer can document
adequate "real world" recruitment. The number
of print advertisements and other recruitment required for
DOL to agree to RIR processing varies from one DOL office
to another.
There are no restrictive requirements: An employer cannot
use requirements that are not normal for the occupation,
unless a business necessity for any special requirements
is established. This means objective evidence establishes
that the special requirements are reasonable in the context
of the employer's business, and essential to perform the
job's duties.
The job is offered at the prevailing wage: In most but
not all DOL regions, the salary offered does not necessarily
need to appear in advertisements used for RIR purposes.
However, the salary offered must be within five percent
of DOL's prevailing wage, and in a few occupations, the
salary offered must equal the prevailing wage.
An internal Posting Notice must also be placed on the employer's
premises for ten consecutive business days. This requirement
cannot be waived. This Posting Notice must indicate the
wage offered but can be a wage range, the lower end of which
must be within five percent of DOL's prevailing wage.
"Adequate recruitment" has been conducted through
"sources normal to the occupation and industry"
within the last six months: Print ads placed no more than
six months prior to filing are always required, in addition
to other forms of recruitment common to the industry. What
constitutes "adequate recruitment" varies from
one DOL office to another, with the state of the local economy
being a paramount consideration. DOL recognizes that an
employer who wishes to show good faith recruitment during
the preceding six months does not need to provide all resumes
in connection with an application for labor certification
because many, if not most, resumes from unqualified applicants
would have been discarded. However, the submission of "final
cut" resumes is preferable. We help employers prepare
the required report for DOL indicating how many persons
applied, how many were interviewed, and why those interviewed
were rejected, or, in the case of multiple job openings,
hired.
It almost always is advantageous to proceed with a labor
certification application based upon an RIR request, however,
unlike before September 11, employers often must do more
than place three newspaper advertisements prior to filing
the labor certification application with DOL. |
Special Handling.
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Closely related to RIR, special handling is reserved for
certain teaching positions at colleges and universities.
The same conditions that apply to RIR cases apply to special
handling with the following significant differences: the
recruitment efforts must have ended within 18 months of
the professor's selection, and it need only be shown that
the foreign candidate is the best qualified applicant as
opposed to the only qualified candidate. |
INS and Consular Processing
Upon approval of the labor certification application by
DOL either through the standard process, RIR, or special
handling, an immigrant visa petition is submitted to the
Immigration and Naturalization Service (INS) by the employer.
Basic information about the employer's business, such as
its number of employees and annual revenues, and a signature
are required for this petition. It is the policy of the
INS to require verification of most employer's ability to
pay the wage offered in the labor certification application
at the time the labor certification was filed. This documentation
may be in the form of W-2 forms, income tax returns, or
other documentation which adequately demonstrates the employer's
ability to pay the offered wage. Upon approval of the immigrant
visa petition, the beneficiary may either file for adjustment
of status before the INS or pursue his/her immigrant visa
before a U.S. Consulate.
For an approved labor certification application to be valid,
the employer must intend to employ the individual sponsored
full-time, in the position offered, and in the same geographic
area once immigrant status has been accorded. In other words,
labor certification is both job specific, employer specific,
and specific to a particular Statistical Metropolitan Area.
The employer's intentions must be reiterated shortly before
the immigrant visa is issued. The beneficiary of the labor
certification must assume the job offered in the labor certification
application once permanent residence is granted and must
intend to work for the employer indefinitely. However, the
law does not require a minimum period of employment in the
position offered after the job is assumed. A partial exception
to these rules exists for persons whose adjustment of status
application has been pending before the INS for more than
180 days. Under those circumstances, the employee may continue
their case without prejudice if they acquire another job
which is the same, or similar to the job in the labor certification
application.
WARNING: The following is article
discussing legal issues. It is not intended to be a substitute
for legal advice. We recommend that you get competent legal
advice specific to your case. If you would like such advice
from our office, call (415) 777-4445 or (916) 349-2900 or
(408) 993-9737. |
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