Labor Certification
 

Selected Labor Certification
Alien foreign worker seeking to immigrate to the U.S. on the basis of an employment offer must first receive a labor certification from the Department of Labor (DOL). The DOL requires an employer to first attempt to recruit United States workers for a particular position. If, after the employer completes the recruitment efforts, the DOL finds that there are no United States workers who are able, willing, qualified, for the position, then the DOL will approve the labor certification. This procedure is mandatory if the applicant is seeking classification within the second or third employment-based preference categories. However, there are some exemptions to the Labor Certification such as the National Interest Waiver which does not require a job offer of the applicant.

The following is a brief outline of the process in obtaining Labor Certification:

  1. Federal statute and regulations require that the DOL must certify that:
    • No qualified, available, willing, and able U.S. worker is found at the time of filing of the application and in the area of intended employment to fill the position offered to the prospective foreign worker; and
    • Employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

  2. Although the actual certification is issued by the Department of Labor, state employment agencies (SESA) are responsible for the process (except in "reduction of recruitment" cases).

  3. Application is initially submitted by the employer or its representative to the state employment agency, (in Texas: Texas Workforce Commission), on Form ETA-750 Part A&B, in triplicate, along with a feasibility letter describing the minimum requirements for the job. The foreign worker's priority date is established when the application for Labor Certification is received by the SESA. This priority date is the foreign worker's date in line to obtain a permanent visa.

  4. Upon review of the application, several requirements of the labor certification application must be cleared before the placement of a job order with the SESA:
    • Full-time, permanent employment offer in the U.S.;
    • Bona-fide job opportunity exists for any qualified U.S. worker;
    • Description of job duties as it falls under a category of the Department of Labor's Dictionary of Occupational Titles (DOT);
    • Minimum requirements of the job must not be unduly-restrictive or tailored to the foreign worker's background;
    • Determination of prevailing wage; and
    • Foreign worker's credentials.

  5. Upon receipt of a job order number with the SESA, recruitment efforts by the employer must begin as follows:
    • Advertisement in the appropriate medium such as the local newspaper or a national professional journal depending upon the type of job opportunity; and
    • Job posting notice at employer's place of business for at least ten (10) consecutive business days.

  6. The recruitment period will take place for thirty (30) days, starting from the date the advertisement is published.

  7. At the end of the recruitment, results of the recruitment must be submitted to the SESA with an analysis or results of any and all applicants who expressed an interest in the job opportunity.

  8. The employer's evaluation of the job applicants including rejection of the job applicants must be based upon lawful, job-related reasons.

  9. SESA will review the final submission of documents from the employer to verify that proper procedures were followed but the state agency will withhold determination on its approvability.

  10. SESA forwards the entire file on a labor certification application to the Department of Labor, Regional Certifying Officer, for evaluation and final determination.

  11. Regional Certifying Officer either approves the labor certification or issues a Notice of Findings (NOF) if the officer has determined that there are legal or factual defects in the application.

  12. If a NOF is issued, the employer has the opportunity to rebut the findings. If the findings cannot be rebutted, there is the possibility of remand to the SESA and a re-advertisement of the job opportunity with the Department of Labor's required amendments.

  13. If there is a rebuttal, the Regional Certifying Officer reviews the rebuttal and issues the final determination.

    NOTE: THE DOL'S APROVAL OF THE EMPLOYMENT CERTIFICATION APPLICATION IS NOT WORK AUTHORIZATION. A LABOR CERTIFICATION ONLY INDICATES THAT THERE ARE NO UNITED STATES WORKERS WILLING, QUALIFIED OR AVAILABLE TO PERFORM THE JOB.

    Labor Certification
    © 1998 Adan G. Vega.   All Rights Reserved.
    Law Office of Adan G. Vega and Associates, P.C.   Houston, Texas,   (713) 527-9606