Labor certification, both for permanent and temporary positions, remains one of the most complex procedures in the field of immigration. A qualified immigration lawyer can provide valuable guidance and assistance through the process of foreign worker certification and immigration.
The U.S. Department of Labor (DOL) certification process seeks to ensure that foreign workers hired to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. The employer, not the employee, works with the Department of Labor to complete the foreign labor certification process, which varies according to the type of visa needed: Permanent, H-1B, H-2A, H-2B, or D-1 . While each visa program does have specific requirements, labor certification follows a generally similar process.
The Department of Labor (DOL) must verify the following:
- An employer needs the skills and abilities of the foreign worker(s)
- The employer has made best efforts to recruit and hire available U.S. citizens and permanent residents
- The employer has offered the normal wage for a position of this type
- The employer has found no qualified U.S. workers for the position. Because the DOL assumes candidates responding to the offer are qualified for the job, the employer must prove the contrary to the DOL. If the DOL is not convinced, the labor certification will not be granted and the foreign national may not immigrate to the United States.
During the Labor Certification Process, the Department of Labor will:
- Determine the real minimum requirements for the position; typically, the DOL expects employers to set requirements which are normal for this type of position and neither too restrictive nor too excessive compared to the existing position description.
- Determine the reference wage; the salary should meet at least the minimum referenced wage as determined by the DOL.
- Analyze responses to the job offer from Americans and permanent residents, to ensure the employer has only rejected candidates for the position for legitimate reasons related to employment.
- Set deadlines for processing, which depend on the location of the job, but can take from several months to several years.
Once the Department of Labor approves the labor certification application, the employer may seek immigration authorization from the United States Citizenship and Immigration Service (USCIS) on behalf of the foreign worker(s) being hired.
After the immigration application is approved, the foreign worker may apply for permanent residence through an adjustment of status.
Permanent Labor Certification Process
Since March 2005, applications for permanent labor certification follow a new DOL process called Program Electronic Review Management (PERM).
The application process involves completing Application for Permanent Employment Certification (Form ETA-9089), which requires a variety of supporting data including job duties, wages, and recruiting efforts. Employers may submit applications directly through the website of one of the two PERM national processing centers.