The Labor Certification Process

The labor certification process is the most commonly used method for obtaining permanent resident status in the United States for foreign national workers. Although processing such cases is time consuming and labor intensive, we are well experienced and have achieved an enviable success rate.

The labor certification procedure is intended to ensure that employers do not seek to employ a foreign national when qualified U.S. workers are ready, willing, able and available to fill the position. Additionally, the process ensures that the offered wages and working conditions will not adversely affect U.S. workers. If the labor certification procedure locates a U.S. worker who meets the minimum education, experience and/or training requirements for the position, the foreign national worker will not be eligible for permanent residency.

The Federal Department of Labor (DOL) requires employers to approach this process as though the employer is willing to hire a qualified, available American worker. The DOL will not, however, compel the employer to hire such a worker, if one is located, because the process is intended only to test the labor market. In order to assure a fair test, employers may not discourage U.S. workers from applying for the job, tell them that the position is already filled by a foreign national, or that recruitment has been undertaken solely for labor certification purposes.

The DOL regulation on minimum job requirements is the principle distinction between the labor certification procedure and the normal hiring practices of most employers. Employers generally establish minimum job qualifications only in vague or broad terms in order to attract the maximum number of job candidates, thereby giving the employer flexibility in choosing the most qualified person for the job. Actual minimum requirements below which a job applicant would not be hired are rarely, if ever, defined because the objective in a normal hiring process is to locate the most qualified candidate.

Contrary to such "real world" hiring practices, the DOL considers U.S. applicants who meet the minimum job requirements as qualified. Therefore, for labor certification purposes it is essential to define the threshold above which the employer is actually willing to hire an applicant. That threshold constitutes actual minimum job requirements.

Labor certification applications may be processed under Conventional, Reduction in Recruitment (RIR) and Limited Review (LR) procedures. Cases accepted by the DOL for RIR or LR processing are fast-tracked for expeditious handling.

Conventional Labor Certification. Conventional processing requires that the application be filed with the State Department of Labor, which agency reviews the application for restrictive requirements and determines compliance with prevailing wages for the occupation. If the State agency is satisfied with the application and subsequent amendments, if any, it will authorize a supervised recruitment to test the labor market for qualified, interested and available U.S. workers. The vehicle used to test the labor market is an advertisement placed either in a newspaper of general circulation or specialized journal, and the posting of a job opportunity notice at the work place.

The advertisement is a "blind ad" (i.e. the employer is not identified) that directs applicants to respond to the State agency. Resumes are screened and forwarded by the State. In Conventional labor certification cases, employers may reject applicants only for reasons that the DOL considers lawful and job-related.

At the end of the recruitment period, the State agency transmits the file to the Federal DOL for a decision on certification. If the DOL has questions about the application, it will send a "Notice of Findings" and will provide the employer with an opportunity to rebut the findings before issuing a decision on the application.

Reduction in Recruitment (RIR). Reduction in Recruitment processing is appropriate for employers that can demonstrate a pattern of recruitment in the six months before filing the Application for Labor Certification and where there are no prevailing wage questions or minimum requirements issues. Use of the RIR procedure waives the conventional State supervised labor certification recruitment and places the application on a fast track for review at both the State and Federal levels.

Limited Review. Limited Review processing is assigned by the State agency to conventional labor certification cases where either no applicants or only a few, clearly unqualified applicants respond to the advertisement. LR cases receive fast track processing at the Federal level only.

The time needed to process labor certification cases varies. Factors affecting processing times include case type (Conventional, RIR, LR) and processing backlogs at the State and Federal DOL offices.