Introduction
Aliens seeking Lawful Permanent Resident (“Green Card”) status in the U.S. on the basis of an offer of employment must first have their employer, or prospective employer, obtain a Labor Certification (LC) on their behalf. Labor Certification is appropriate only if the employer expects to employ the alien beneficiary permanently or indefinitely, rather than for a fixed, temporary period of time.
A Labor Certification is a finding made by the Certifying Officer of the Department of Labor. To qualify, the employer must demonstrate that he is unable to locate a U.S. worker who meets the minimum qualifications for the position while offering prevailing wages and working conditions. The term “U.S. worker” includes both U.S. citizens and Resident Aliens. This is accomplished by “testing” the labor market in accordance with guidelines mandated by the Labor Department. Strict compliance with every aspect of the regulations is required.
Preparing an Application for Labor Certification
An Application for Labor Certification must be prepared with great care to insure that the job requirements are fairly and accurately stated. The Application is filed electronically after specific recruiting efforts have been conducted and the employer has demonstrated that no qualified U.S. worker was identified. The Application is signed by both the employer and alien beneficiary before the Application is filed electronically with the Department of Labor.
Minimum Job Requirements
DOL will scrutinize the minimum requirements set forth for the position very carefully to insure that they are reasonable, customary, and absolutely necessary to perform the job. They will object to any unnecessarily restrictive requirements, which appear to “tailor” the position to the alien beneficiary to the detriment of otherwise qualified U.S. workers.
Ordinarily, it is not acceptable to require experience or knowledge acquired by the alien beneficiary with the petitioning employer. DOL insists that the job be offered to U.S. workers on the same terms that it was originally offered to the alien beneficiary. In some cases, however, it is possible to require experience gained with the employer if either:
- Due to a change in circumstances, it is no longer feasible to offer the position on the same terms that it was originally offered to the alien beneficiary, or
- the alien was hired in or contracted to work in a different job for the employer, with proof that the job in which the alien gained the experience is not substantially comparable to the job for which certification is being sought. A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
Prevailing Wage
The employer must offer to pay the “prevailing wage” to the alien. The prevailing wage is the amount paid by similar employers to U.S. workers who meet the minimum requirements for the position. DOL believes that if the employer is paying substandard wages, the labor market is not being properly tested. We submit all details for the job offer, including the job description, the minimum education and work experience requirements, any additional skill sets required for the position, and any travel requirements, to DOL for review. DOL will then evaluate the job details to issue a determination.
Two factors are involved in this determination:
1. Classification:
- The position “classification”, or a category for the position such as ‘Mechanical Engineer’ or ‘Software Developer, Applications’ included in DOL’s O*NET Database, is their assessment of how the particular job duties for the position offered can be classified. They take into account the minimum requirements for the position, the job duties, and the position title.
- We recognize that they have a limited number of classifications, and therefore DOL classifications are not always a perfect match. We are given the option of suggesting a classification on the prevailing wage request forms. We will discuss with the employer what classification from the O*NET Database best describes the job duties for the position so that we can guide DOL to an appropriate classification. DOL may or may not agree with our suggested classification.
- If we feel that the classification they issue is incompatible with the job offer, we can request that they reconsider. We have 30 days upon receipt of the prevailing wage determination to argue for reclassification.
2. Wage level:
- Each classification has four wage levels with a corresponding base salary. Wage Level I is generally reserved for entry-level positions, and is described by DOL as “beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment.” Wage Level IV is described as “competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques.” The levels in between are more difficult to distinguish. While we can make an educated guess based upon the minimum education and work experience requirements for the position offered, we cannot predict with certainty how DOL will evaluate the position until we submit for an official determination.
Alternate Wage Surveys
A private/alternate wage survey may be submitted if acceptable under DOL standards. The survey must comply with the following criteria. DOL will be most likely to accept an alternate wage survey which complies with all of these items:
- 1. Data on which the wage is based must have been collected within 24 months of the publication date of the survey
- 2. Published survey must have been published within 24 months of date of submission and it must be the most current edition of the survey
- 3. Survey must represent similar jobs in the area of intended employment – the area within normal commuting distance of the place (address) of intended employment (this is generally the “Primary Metropolitan Statistical Area (PMSA) for a given area
- 4. Survey’s job description must match the job description contained in the prevailing wage request
- 5. Wage data must be ‘Cross Industry’; in other words, survey must have been collected across industries that employ workers in the occupation
- 6. Survey should produce an arithmetic mean (weighted average) of wages for workers in the appropriate occupational classification in the area of intended employment; if the mean is not available, then the median can be used
- 7. Survey must identify a statistically valid methodology that was used to collect the data
We can review any surveys that your company has access to and let you know how closely the survey complies with DOL standards. Even a survey which we think has a high likelihood of being accepted may be rejected by DOL in their assessment of the job details and the survey data. If they do not accept the survey, they will assign wages based on their own data.
Recruitment Phase
Advertising
There are three required steps (advertisement in 2 Sunday editions of local newspaper/listing on state job bank for 30 days/posting notice on company premises for 10 consecutive business days). In addition to the three required steps, there must be three additional recruitment efforts made. Below is a summary of the necessary steps. Our intention is to follow your normal business practices through this recruitment plan as closely as possible while complying with all requirements established by DOL for a rigorous recruitment process.
Advertising must include:
- Two print ads in a Sunday edition of a mass circulation newspaper such as the Boston Globe, or one Sunday print ad in a newspaper and one journal ad
- Listing on the State Job Bank for 30 days (with another 30 day wait period after completed before filing any case)
- Posting a printed notice on company premises for ten consecutive business days
- Posting in any in-house media or intranet, if the employer uses such a system
- AND at least three additional types of recruitment based on the following list
- Job search website other than the employer’s Employer’s web site
- Employee referral program with incentives Job fairs On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertising
Review of Responses
DOL guidelines require that all potentially qualified applicants who surface as a result of the State Job Bank posting or the advertising campaign be reviewed in a timely manner by the employer. We recommend that employers contact applicants, if they appear to meet minimum requirements, within two weeks of receipt of resume. In addition, the employer must retain the resumes of all persons responding to the job posting together with reasons for rejecting those persons for the position. In the event of an audit by DOL, that information may be part of the documentation requested. Only “lawful job-related reasons” may be relied on to reject U.S. workers applying for the job opportunity.
When the applicant’s resume shows that he or she could not possibly possess the employer’s minimum requirements for the position, no interview need be conducted. An employer who rejects an applicant without an interview, however, must be able to justify the rejection of the applicant on the basis that the applicant does not meet its minimum requirements.
On the other hand, when the resume merely does not contain, with absolute certainty, the needed information to determine whether the applicant meets the stated requirements, further steps should be taken to inquire further with the candidate through interview. An employer must be careful in determining the appropriate dividing line between an ambiguous resume and one that shows that the applicant is unqualified.
The phone screen could either be used to verify that the applicant does not meet the minimum requirements, if at all unsure (this could be, for instance, if one cannot tell by the resume whether or not the applicant is authorized to work in the U.S.; a simple follow-up email could clarify this question), or, for resumes that show higher qualifications, the phone screen should be used to ascertain whether or not the applicant could be qualified. If the applicant appears qualified, a more in-depth phone or in-person interview is needed.
It is of course impermissible to tell a job applicant that the position is already filled by the alien, since the purpose of the recruitment is to locate U.S. workers to fill the position. However, it is permissible to tell a job applicant that no decision will be made until a date coinciding with the closing of the thirty-day job order period. If the applicant does not pursue the opportunity or is no longer available at the end of the thirty-day period, he or she will not be considered as an “available” U.S. worker.
The employer should keep notes on each telephone conversation and interview with a job applicant, as an issue of fact may later arise over what was said to the applicant, and whether the applicant was rejected for lawful reasons
The most acceptable reason for rejecting a job applicant is that the applicant’s training and experience does not match the minimum requirements specified by the employer. Other permissible factors that can lead to rejection of an applicant are the poor health of the applicant if the health situation would affect job performance or reliability, poor work references or references that cannot be checked, and the applicant’s lack of proficiency in the English language. Further review of employment and disability law with corporate counsel is also recommended in some situations.
When an applicant is rejected for one of the above reasons, the employer must state specifically the basis for the rejection. When submitting its report of recruitment results in the “Recruitment Report” at the time of filing, the employer will summarize its reasons for disqualifying all candidates.
Filing an Application for Labor Certification
The new procedure for filing Applications for Labor Certification electronically, in place as of 2005, is known as the PERM program (Program Electronic Review Management). The goal of the PERM program is to provide more expeditious and consistent handling of LC applications throughout the U.S. The final forms, called the ETA 9089 forms, include information about the employer and the job offered, the dates that each recruitment effort was conducted, information about the employee and how the employee qualified for the position at the time he or she was hired, and finally, information about the employee’s past work experience.
Since the application is submitted electronically, the form is in attestation form. No documentation will be sent with the Application. Instead, documentation of the unsuccessful recruiting effort must be compiled and maintained by the employer and made available to DOL upon written request or in the event of a DOL audit. With these measures we are prepared in the event that DOL requests this backup information if the case is chosen for an audit. Audit responses must be submitted to DOL within 30 days after we receive the notification. The employer is then required to submit all backup documentation collected throughout the case to DOL. It is impossible to predict, in most cases, which cases will be chosen for an audit. While most audits are random, some audit requests may outline specific reasons for having chosen that particular application.
DOL Processing Times
DOL processing times for these cases vary greatly and we will be happy to speak with you regarding the most recent trends at the time we file your case. Processing can take anywhere from a few weeks to six months or longer. If additional information is requested or an audit is conducted, processing times may go well beyond this estimate, as there is no provision in the regulations for response times required by DOL.
Costs Incurred in the Labor Certification Process
Under current law, the employer MUST bear all such expenses, including any legal fees incurred, related to the Application process. Other costs typically are limited to advertising expenses, and in some cases the cost of a private wage survey. The alien beneficiary cannot voluntarily assume or be required to pay such costs.
Summary
The ability to obtain a Labor Certification may be critical to an employer seeking to obtain or continue the services of a qualified alien employee, as well as to the alien beneficiary seeking to remain permanently in the U.S. Detailed procedures exist which must be carefully observed in order to accomplish this result. Interested employers should not be deterred by what may at first glance seem to be a bewildering array of obstacles, but should realistically assess the prospects for a successful resolution by seeking competent guidance.
We cannot guarantee that any Labor Certification application will be successful. Moreover, even if Labor Certification is obtained, other circumstances, including the passage of time, changes in the employment situation, or changes in the law, may make it impossible for the applicant to achieve his ultimate goal of obtaining Lawful Permanent Resident status.
Additional Steps After Labor Certification Approval
Once an application for labor certification has been approved, there are two additional steps required in order for an individual to obtain lawful permanent resident status; an I-140 immigrant visa petition is filed on their behalf by the employer, and, in some cases, the individual may file for adjustment of status (I-485), which is essentially the application for green card. There is an option for obtaining lawful permanent resident through consular processing abroad. Family members may also file their applications for adjustment of status along with the principal applicant, assuming that they are eligible to do so.
I-140 Immigrant Visa Petition: Once we have received an approved Labor Certification, the company can file the I-140 petition on behalf of the employee. It must be filed within 180 days of Labor Certification approval. It typically takes around 4 to 6 months for the I-140 to be adjudicated, but processing times may change without notice. This step can be expedited (“premium processed”) for a 15-day turnaround for an additional fee to the government. We usually do not recommend this unless an H-1B extension, if needed, would be approved for three years instead of one beyond the six year limitation, if the I-140 were to be approved prior to filing the extension request.
I-485/Adjustment of Status: Once the employee has an approved Labor Certification, some individuals may be able to file their I-485 application for adjustment of status along with the employer’s I-140 immigrant petition filing. This is possible as long as a visa number is available for the employee’s country of nationality and the employee’s employment classification (E3/E2). If the employee is not immediately eligible to file his/her I-485 along with the I-140, he/she may submit the I-485 as soon as visa numbers become available. The employee can find out when his/her priority date will become current by going to this website: www.travel.state.gov. Go to the “Visas” tab and look under “Visa Bulletin”. Note that these dates fluctuate from month-to-month, as visa numbers are always changing.