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Labor Certification
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 workers' 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. worker and
    who is ready, willing, qualified, and able to file the open position.

  • The employee 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 LC will not be issued and the foreign national will
    not be able to immigrate to the U.S.

What is the labor certification process?

  • Establish a valid employee/employer relationship:  Although
    the LC process can be done for persons who are outside the U.
    S., most LC's are begun for persons who are already in the U.S.
    working for an American employer.

  • Determine the minimum requirements:  The key to the LC
    process is to decide what the true minimum requirements to the
    position are.  The requirements generally must be normal to the
    occupation, must not be overly restrictive, 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.

  • Analyze responses to recruitment:  Any responses to the
    recruitment must be evaluated carefully.  The employer can reject
    applicants only for lawful, job-related reasons.

  • Processing times:  Processing times vary from a 5-6 months.

What happens after labor certification approval?

The approved LC is filed with U.S. Citizenship and Immigration Services
(USCIS) along with an immigrant petition 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 (jobs requiring a bachelor's degree); 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").

If the immigrant petition is approved, the foreign national then may apply
for permanent residence either through adjustment of status or consular
processing.

For how long is the Labor Certification valid?

Generally, an approved LC is valid indefinitely for a specific employer,
position, and location.  If any of these factors change, the LC may
become a useless document.  Additionally, under a new regulation, DOL
has broad power to revoke a certification.

Under legislation passed in October 2000, however, individuals who
have applied for adjustment of status and whose cases have been
pending for 180 days or more may change jobs or employers without
affecting the validity of the underlying immigrant petition and LC, as long
as the new job is in "the same or a similar occupational classification" as
the job in the original petition and LC.

What are some common misunderstandings?

An approved LC is proof that there is a shortage of U.S. workers.  It is
only a first step in obtaining permanent residence (Green Card) status:

  • It does not give authorization for a foreign national to remain in
    the United States.

  • It does not "legalize" anyone's stay in the U.S.

  • It does not guarantee permanent residence.

What is the new PERM labor certification process?

In March 2005, DOL Implemented a new way to process LCs.  The
Program Electronic Review Management (PERM) program is an
attestation and audit process whereby employers seeking permanent
labor certification conduct advertising and recruitment prior to the filing
the LC application.

The application process consists of one form, the "Application for
Permanent Employment Certification" (Form ETA 9089), which requires
a number of attestations as well as other information.

The applications are filed online or may be sent by mail to one of two
national processing centers.  Cases may be flagged for audit on the
basis of certain factors, or simply randomly selected.  The audit process
may include a request for additional documentation, after which a
certifying officer can certify or deny the application, or call for
supervised recruitment.