LABOR CERTIFICATION

When an alien seeks to become a legal permanent resident (Green Card holder) of the United States, he/she must usually apply under the general categories of either family based sponsorship or employment based sponsorship. Before such an application is submitted to the Immigration and Naturalization Service (INS), a Labor Certification approval must be obtained.

The main object behind Labor Certification is to ensure that a U.S. worker does not lose his/her job opportunities to an alien.

When a U.S. employer gives an offer of a full-time, permanent job to an alien, the employer must submit a Labor Certification form (ETA 750A & B) showing that a valid job exists and there are no qualified U.S. workers to fill the position. This form is first sent to the U.S. Department of Labor (DOL), and after their approval, it is forwarded to the Immigration and Naturalization Service (INS) along with the other documents required for a work permit.

The documents to be sent to the DOL along with the Labor Certification form are:

a) a job offer letter, signed by the employer, describing the job duties and salary

b) a statement, signed by the alien, giving his/her qualifications and experience

c) documentation of the alien’s qualifications and experience

d) a proposed advertisement

e) internal posting notice at the employer’s company

Labor Certification is a time-consuming process and requires the co-operation of the employer. There is usually not much expense involved for the employer, but he/she has to submit several forms and documents along every step of the way.

1) The employer must place an advertisement of the required position in a local newspaper, describing the duties, hours and salary.

2) The advertisement must run for at least three consecutive days.

3) The employer must wait for 30 days and keep track of any job applicants.

4) If no qualified U.S. worker is available, then the Labor Certification application for the alien is filed with the DOL.

It is very important that the employer agrees to pay the prevailing wage for the type of job offered. If he/she offers the alien a salary below the prevailing wage, it will not be approved by the DOL.

Only after the employer can prove that there are no U.S. workers qualified or available for the position, and that the job offered corresponds to DOL regulations, will the Labor Certification be approved.

There is no fixed processing time taken for DOL approval, but can take several months.

After the Labor Certification has been approved, the next stage of processing is to file an employment-based petition (Form I-140) or a family based petition (Form I-130) with the INS. Once approval of this petition is obtained from the INS, the alien is ready to make a final application towards obtaining permanent residency.

If an alien is physically present in the United States and has been in valid legal status since his/her entry, he/she can obtain his/her Green Card without leaving the U.S., through a process called ‘Adjustment of Status’. If he/she is not eligible for this, either because he/she is not physically present or because he/she is out of legal visa status, the process may be completed at a U.S. Consulate, and is called ‘Visa Processing’.

H-1B Temporary Labor Certification for Specialty Professional Workers
Employers who need to use alien workers for a temporary period in professional occupations must file Labor Certification applications stating that they will pay the appropriate wage rate to the alien, that they have posted notice of their intent to employ alien workers and that there is no strike or lockout at the place of employment.

H-2A Temporary Labor Certification for Agricultural Workers
Agricultural employers who anticipate a shortage of domestic workers are allowed to bring in non-immigrant aliens to the U.S. to perform agricultural labor that is of a temporary or seasonal nature. The employer must file an application with the DOL, showing that there is not enough U.S. workers who are qualified, willing and able and that the employment of aliens will not affect the job chances of a U.S. worker.

H-2B Temporary Labor Certification for Skilled/Unskilled Workers
Under this classification, employers may hire certain skilled or unskilled alien workers (housekeeper, stable attendant, sports instructor, etc.) for a temporary period of one year, which may be extended, to a maximum of three years. Although this labor certification process is very similar to the one for permanent residence applications, it is not so extensive and time consuming.

Pre-certified Job Positions
The DOL admits that the labor certification process is burdensome and time-consuming for both the applicant as well as the government and takes an average of about nine months to complete. In order to help alleviate this burden, the DOL has designated certain occupations that have an acute dearth of personnel. These are known as ‘pre-certified’ positions and are listed on the Labor Department’s Schedule A, Group I. These positions do not require individual permanent labor certification. At the moment, only two such pre-certified occupations are listed, viz. registered nurses and physical therapists. This would help medical institutions by relieving them of the labor certification process when hiring persons in these positions.

The requirements for the two positions are as follows:

a) Physical Therapists – a letter from the state licensing authority for the state of intended employment must be submitted to the INS with the Labor Certification Forms; the letter must state that the alien is qualified to take that state’s written licensing examination for Physical Therapists.

b) Professional Nurses - the Professional Nurse must have passed the examination given by the commission on Graduates of Foreign Nursing Schools (GFNS) or must have a full, unrestricted license to practice nursing in the state of intended employment. This category consists of professional or registered nurses only. A licensed practical nurse is not considered a Professional Nurse under Group I.

Note : The labor certification has now been shortened considerably for certain job positions. This process is known as Reduction in Recruitment Process.

Related Links:

- Frequently Asked Questions