Labor certification (i.e., a DOL statement that there are no qualified, available U.S. workers willing to fill a particular position) has been a part of U.S. immigration law since 1965. Labor certification applies to all workers in the EB-3 preference category and most workers in the EB-2 category. Aliens in the EB-1 preference are exempt from the requirement.

Any foreign individual entering the U.S. to obtain employment on a permanent basis is inadmissible unless the Secretary of Labor issues a certification that the individual will not displace a U.S. citizen or permanent resident workers. See INA § 212(a)(5)(A). Employment for the purposes of labor certification means permanent full-time work by an employee for an employer other than oneself.

When labor certification is a prerequisite for USCIS approval of an employment-based petition, the prospective employer must submit evidence to the Department of Labor (“DOL”) that the employment of the foreign national will not displace any U.S. citizen or permanent resident workers.

The DOL, through individual state offices, is responsible for verifying that there are no U.S. workers able, willing, qualified, and available for the position the employer wishes to fill. Furthermore, the employer must demonstrate that the foreign national will be compensated at the prevailing wage rate for such employment in the U.S. This requirement protects the alien from exploitation by the U.S. employer, and it serves to avoid depressing the wage rates for U.S. citizens and permanent residents.

An employer must develop a job description, including, but not limited to, job duties, minimum educational and experience requirements, and salary. The job duties and requirements should be consistent with those defined for the job in the DOL’s Dictionary of Occupational Titles (“DOT”). Requirements may not be unduly restrictive or specifically tailored to the beneficiary (i.e., alien applicant) of the labor certification application. Unfortunately, due to budget cuts, most DOL offices are experiencing delays in processing labor certifications; therefore, this process could delay getting permission to hire a foreign national. The DOL maintains a website, http://www.ows.doleta.gov/foreign/times.asp which includes updated reports on the processing times at the State and Regional offices of the DOL.

To demonstrate that there is no U.S. worker available for the position, the employer must advertise the position. Generally, nonprofessional jobs should be advertised in a generally circulated newspaper for three consecutive days. The publication should reach the audience most likely to bring the largest number of responses and some DOL regions require that one of the days on which the ad runs be a Sunday.

Professional jobs and those that are highly technical in nature should be advertised in a professional journal, as should positions requiring a professional degree. Some regions will allow advertising for these jobs in a generally circulated newspaper, if one of the days the ad runs is a Sunday. If the position has a foreign language requirement, some regions will allow advertising in an ethnic publication if it is circulated in the area of the job location. If the ethnic paper is not published daily, in some cases a single ad will suffice. Online job boards can also be acceptable.

The prospective U.S. employees’ applications get sent to DOL for prescreening. If any seemingly suitable U.S. worker applies through this process, the company must consider that person for the position and eventually explain to DOL why the U.S. person was not hired for the post, if qualified.

Reduction in Recruitment (“RIR”)

If the employer has made attempts to recruit for the position prior to filing the labor certification application (rather than concurrently with labor certification), DOL regulations will in some cases allow the employer to request a reduction in the ordinary recruitment process—reduction in recruitment (“RIR”).

When submitting the request for RIR, the employer should include documentary evidence of recruitment efforts, including a copy of at least one advertisement. If recruitment was attempted through an employment agency, union, or school, evidence of these attempts should also be included. Furthermore, the employer should include a list of all the responses to the recruitment, as well as the reasons why none of the applicants were hired.

If the RIR request is granted, the employer will not be subject to further supervised recruitment efforts by the State DOL office. In most cases, this will dramatically reduce the overall time it takes to process the labor certification application.

The guidelines require the Regional and State DOL offices to encourage RIR requests when applications include the following:

• Occupations for which there is little or no availability;
• Applications which contain no restrictive requirements; and
• The employer can document adequate recruitment for the position through sources normal to the occupation and industry within the previous six months.

Some categories have a wealth of qualified U.S. workers to fill those positions. As such, DOL will not certify a foreign national for those posts.

Special Handling Labor Certifications

Special handling labor certification is used for professors and teachers in colleges and universities, and for aliens of exceptional ability in the performing arts. It differs from ordinary labor certifications in that the alien worker is shown to be more qualified than any U.S. worker who applied for the position. The process for teachers and performing artists is by and large the same, although there are some important differences.

For college and university teachers, the school must conduct a competitive recruitment for the position offered to the alien. The school demonstrates that it meets this requirement by submitting the following to the DOL:

• A statement from the employer, signed by a hiring official, outlining the recruitment procedure, the number of applicants for the position, the specific reason the alien was better qualified than each applicant, and the final report of the selection committee of the school;
• A copy of at least one advertisement for the position run in a national professional journal;
• Evidence of other recruitment; and
• A statement of the alien’s educational and professional qualifications and achievements.

The labor certification must be filed within 18 months after recruitment for the position begins.

Example: Armstrong Lewis is a world renowned professor of physics and is a native of the Netherlands. He has won several prestigious awards during his career. In addition, he had taught in England for several years. A major U.S. university wants to bring Professor Lewis to teach at its university. Before the university can gain DOL approval to hire Professor Lewis, the university must follow the procedures listed above.

A special handling labor certification for an alien with exceptional ability in the performing arts must demonstrate both recruitment efforts and that the alien possesses exceptional ability. This is shown by submission of the following:

• A copy of at least one advertisement for the position placed in a suitable national publication, along with a detailed report on the results;
• Evidence that unions traditionally used for recruiting in the performing arts were contacted and unable to provide any worker as qualified as the alien;
• Evidence of the alien’s exceptional ability, such as published material about him or her, playbills, the reputation of organizations that previously employed the alien, and the alien’s ability to command a high salary.

Labor Certification Processing

The DOL certifies a given job offer only if it can be demonstrated that there are no qualified and willing U.S. workers to fill the position. There are several government agencies (and steps) involved with granting permission for foreign workers to work in the U.S.:

• Employers must seek certification through the DOL via submission of Forms ETA-750 Parts A http://workforcesecurity.doleta.gov/foreign/pdf/eta750a.pdf and B http://workforcesecurity.doleta.gov/foreign/pdf/eta750b1.pdf;
• Once the application is certified or approved, the employer must petition the USCIS for a visa. (Approval by DOL does not guarantee a visa issuance); and
• Applicants must also establish that they are admissible to the U.S. under provisions of the INA. (In other words, they must not have any inadmissible traits in their background).

The requirement to pay prevailing wages, as a minimum, is true of virtually all employment based visa programs—permanent and temporary. However, in certain programs, such as H-1B (temporary specialty occupations), the employer is required to pay the prevailing wage or the actual wage paid by the firm to workers with similar skills and qualifications, whichever is higher. The process by which employers verify the prevailing wage is by filing a labor condition application (“LCA”).

Labor Condition Applications (“LCAs”)

The requirement of a labor condition application (“LCA”) was imposed by the 1990 Immigration Act. It serves two related purposes:

• ensures that U.S. wages are not depressed by the hiring of foreign labor, and
• ensures that foreign workers are not exploited.

The employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations (sworn statements made to DOL) are as follows:

• The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position;
• The employment of H-1B workers will not adversely affect the working conditions of U.S. workers;
• When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute; and
• The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed.

Once the LCA has been filled in, it is submitted to the DOL. Under the 1990 law, the DOL is supposed to certify the LCA within seven days of submission, but there is little way to enforce this. The reality is that even with a new automated faxback system, the DOL still frequently takes more (sometimes much more) than seven days to certify an LCA.

Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

In addition, the employer must keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid to the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided to workers, and evidence that the H-1B worker has been given a copy of the LCA. Once approved, an LCA is valid for three years.

Obtaining an LCA is only the first step in the H-1B process. The application for an H-1B visa must present evidence that will convince the USCIS of three basic truths:

• The employer has a legitimate need for a “specialty occupation worker”;
• The position offered is in a “specialty occupation”; and
• The prospective employee is qualified for the position.

Case study: H-1B Visa

Jerome is a French citizen. His specialty occupation is architecture. A major St. Louis architecture firm wants to hire him under the H-1B visa program. As such, his future employer will need to file the I-129 petition with USCIS service center having jurisdiction over the place of employment. The filing should consist of:

• Form I-129 (Petition for Nonimmigrant Worker) http://uscis.gov/graphics/formsfee/forms/i-129.htm;

• Form I-129W (H-1B Data Collection and Filing Fee Exemption) http://uscis.gov/graphics/formsfee/forms/i-129w.htm;

• H Supplement form;

• Cover letter from petitioner describing the proposed employment and beneficiary’s qualifications;

• Appropriate fee (currently $185; if premium processing is requested, file form I-907, along with the additional $1,000 fee. The Premium Processing fee must be submitted in a separate check or money order.) http://uscis.gov/graphics/formsfee/forms/i-907.htm;

• Form G-28 (Notice of Appearance as Attorney or Representative) http://uscis.gov/graphics/formsfee/forms/g-28.htm;

• Documentation of the worker’s qualifications and that the job is in a specialty occupation; and

• Certification of filing the LCA (Form ETA 9035) http://workforcesecurity.doleta.gov/foreign/pdf/h1bhand_format.pdf

Premium Processing

Premium processing service provides American businesses with the opportunity to obtain faster processing of a petition to meet their needs for a foreign worker. Specifically, the USCIS will provide 15-calendar day processing to those who choose to use this service or the USCIS will refund the premium processing fee of $1,000 (if it misses the deadline) and the relating case will continue to receive expeditious service.

The processing period that will be used to determine whether or not the USCIS meets the 15-day period will begin when the I-907 is delivered to the USCIS (at the appropriate address) and will end upon the USCIS mailing of a notice. The notice may be a notice of approval, request for evidence, intent to deny or notice of investigation for fraud or misrepresentation. If the notice requires the submission of additional evidence or of a response to an intent to deny, a new 15-day period will begin upon the delivery to the USCIS of a complete response to the request for evidence or notice of intent to deny.

Since implementation of the program on June 1, 2001, those employers who file a Form I-129 to classify a beneficiary under one of the following nonimmigrant categories may request premium processing service: E-1, E-2, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3 and Q-1. Since July 30, 2001 the USCIS has made this service available to employers who wish to file a Form I-129 to classify a beneficiary as an H-1B, TN or R nonimmigrant.