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Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. The prospective employer must first obtain a labor certification and approval of a petition. The labor certification process is one of the most complex of all immigration-related procedures. This pamphlet will make you aware of some of the requirements and procedures in this intricate and time-consuming process. Be sure to consult with an attorney experienced in immigration matters to be certain that your case is prepared correctly.
What is a Labor Certification?
- An approved labor certification (LC) is a document issued by the U.S. Department of Labor (DOL) certifying that
- An employer needs the foreign worker's skills and abilities.
- The employer has tried to recruit U.S. workers for the position. The employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident who is ready, willing and able to fill the open position.
- The employer has offered the position at the normal or prevailing wage.
- The employer has found no qualified U.S. workers. Candidates who respond to the recruitment are presumed to qualify. The employer must convince DOL that they do not. If DOL is not convinced, the labor certification will not be issued and the foreign national will not be able to immigrate to the United States.
The Labor Certification Process
- Establish a valid employee/employer relationship.
Although the LC process can be done for persons who are outside the US., most LCs are begun for persons in the United States who are already working for an American employer.
- Determine the minimum requirements.
The key to the LC process is to decide what are the true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered.
- Determine the prevailing wage.
The salary offered must be at least the prevailing wage, as determined by DOL.
- Conduct recruitment efforts.
A test of the labor market is usually done through a three-day newspaper advertisement, or one advertisement in a national journal or newspaper, and a posting.
- Analyze responses.
Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.
What Happens After Labor Certification Approval?
- The approved LC is filed with the U.S. Immigration and Naturalization Service (INS) along with other paperwork to determine whether the foreign national qualifies for one of the following categories of sponsorship
- Members of the Professions with Advanced Degrees or the equivalent or Aliens of Exceptional Ability in the Sciences, Arts or Business (Second Preference).
- Professionals, Skilled Workers (jobs requiring two years or more training or experience) or Unskilled Workers (jobs requiring less than two years training or experience) (Third Preference).
- It will take many years to immigrate under the Third Preference Unskilled category and about one to two years for persons classified under the Second and remaining Third Preferences. Strategies to avoid the Third Preference Unskilled classification whenever possible are imperative.
How Long is the Labor Certification Valid?
- Generally, an approved LC is valid indefinitely for a specific employer, position or job and location. If any of these factors change, the LC may become a useless document.
Common Misunderstandings
- An approved LC is proof that there is a shortage of U.S. workers. It is only a first step in the permanent residence process to obtain the "Green Card."
- It does not give authorization for a foreign national to remain in the United States.
- It does not "legalize" anyone's stay in the United States.
- It does not grant permission to work
- It does not guarantee permanent residence
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