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Labor Certification Overview
Click for a Printable Version of this Article Use: Labor certification is the first step in standard “green card” process to obtain permanent resident status based on a job in the United States. Permanent resident applicants, other than “Priority Workers” (EB-1) and “National Interest Waiver” (EB-2) workers, must show that their employer recruited for the position without identifying qualified, available U.S. workers. This test of the labor market through recruitment is called “labor certification” and involves filings (Forms ETA 750 A and B) reviewed by state and federal Departments of Labor. Definition of Labor Certification: Labor certification is a statement from the U.S. Department of Labor (DOL) that a particular position at a particular company is "open" because no qualified U.S. workers are available. Regular or standard labor certification requires an employer to submit ETA 750 forms to a state labor department, wait up to several years for the state labor department to open the application, then undertake advertising of the position under the supervision of the labor department. Due to state labor department backlogs, regular labor certification can take several years. Definition of Reduction in Recruitment (RIR): RIR is a shortened labor certification process whereby the employer first advertises the position, collects resumes and summarizes the results, then submits the ETA-750 forms to the DOL on behalf of a named foreign national who may or may not hold the position. The employer’s recruitment evidence shows that based on continuous and recent recruitment, no qualified U.S. workers were available to fill the position. Advantages: RIR labor certification has several advantages including: faster, because the employer controls the recruitment process, the employer does not have to advertise the salary and because the employer, not DOL, decides if applicants are qualified. Disadvantages: RIR labor certification treatment is not guaranteed. USDOL can deny the RIR treatment (this denial can come one to two years after filing of the RIR) and remand the case back to the state labor department for additional, supervised advertising and recruitment, effectively doubling the amount of advertising required. RIR, even if granted, can still be more expensive because more recruitment evidence is required. In some states, six monthly advertisements are required, whereas regular labor certification may only require one three day advertisement. In this sour economy, the DOL has increased the number of remands on RIR petitions. An additional disadvantage of RIR labor certification is the imminent implementation of a new PERM labor certification program. PERM is expected to be operational in Fall 2003, although the program has been stalled for many years. DOL hopes the average wait for PERM applicants will be a few weeks, not a few years. DOL has not publicly resolved how already filed and pending RIRs will be treated once PERM is available. Will RIR applications be converted into the PERM program, or will employers be required to do new additional PERM-compliant advertising? PERM is expected to place more emphasis on prevailing wage than RIR. Thus, an RIR applicant may be placed in the awkward situation of waiting longer for labor certification than PERM applicants. RIR Time Frame: The time frame varies from state to state but is substantially shorter than the traditional labor certification process. Total time frames for RIR labor certification range from 2 months to 24 months at present. RIR Filing Requirements: An employer may request RIR if it has made consistent recruitment efforts during the six months before filing the ETA forms with a state labor department. In addition to advertisements in newspaper publications, employers should also recruit through job fairs, college recruitment, headhunters, in-house recruiting staff, in-house referral program, and Internet sources (job openings either on employer’s web page or on other job bulletin boards). State standards for adequate recruitment vary. At least one print ad in the six month window before filing is necessary. RIR Substantive Requirements: RIR processing is available only where the following conditions are met:
During the last few years of economic downturn, an increasing number of RIR filings have been remanded based on the growing number of unemployed U.S. workers. In a March 2002 memorandum, the Chief of the Foreign Labor Certification Division of DOL mandated that RIR filings contain at least one published advertisement and one Internet posting, and suggested that RIR treatment may not be accorded in high unemployment areas and occupations. U.S. Workers: Labor certification fails if qualified "American workers" apply for the position. An American worker is someone who is a permanent resident or citizen. A labor certification is not threatened by the application of a nonimmigrant foreign national for the position. Employer Preference: One of the basic requirements of labor certification is the employer may show no preference for the foreign national employee who is currently occupying the position. Rather, the employer must conduct recruitment as though the position were open. Also, labor certification will not succeed merely because the foreign national employee is more qualified than U.S. workers who apply. Rather, labor certification will only succeed if no U.S. workers who are minimally qualified for the position apply. Ability to Pay the Wage: Because the labor department instructs an employer what the "prevailing wage" (e.g., the required salary for the position) is, and because the position must offer this salary, an employer is sometimes put in an awkward position of having to increase the salary for a foreign national worker beyond what is offered to U.S. employees who hold the same position at the same company. However, an employer is not obligated to pay the prevailing wage to the foreign national employee until permanent resident status is obtained, which is often more than a year later. Therefore, although the stated salary for the position may be higher than the salary currently received by the foreign national employee, the employer is only obligated to pay the salary at the time a green card is ultimately approved. Immigration Status During the Pendency of a Labor Certification: While a labor certification application is pending, whether the foreign national employee holds a particular type of temporary visa or has no visa at all does not affect the success or failure of the labor certification. On-the-Job Experience: The foreign national beneficiary of a labor certification must satisfy the minimum requirements defined for the position at the time he or she was originally hired. For example, if a company hires a foreign national who has recently graduated from college, and starts a labor certification for that person two years later, the employer may not require two years of work experience, because the company hired this person for the job when he or she did not have any work experience. Exceptions include where the foreign national employee has been promoted to a higher position and an outside recruitment was conducted at the time of that promotion. Minimum Requirements: The key to a successful labor certification is careful consideration of the true minimum requirements for the position. Bear in mind that all employees of the company who hold this position must satisfy the minimum requirements. Therefore, for example, a computer software company cannot require that all salespersons have bachelor's degrees in engineering or master's degrees in business if it currently employs persons who do not possess these qualifications. If a Qualified U.S. Worker Applies: If a qualified U.S. worker applies, the employer is not required to hire that person. Nor is the employer required to fire the foreign national employee. However, the labor certification may fail. Because in most cases the foreign national employee has separate temporary work authorization, such as an H-1B visa, the foreign national employee may continue to work for the company. If the Labor Certification Fails: If the labor certification fails, a new application may be filed after six months. College Teachers and Researchers: Special consideration called “special handling” is granted to college teachers and researchers and labor certification is facilitated for these positions so long as the college followed its usual recruitment process and hired the most qualified applicant for the position within the past eighteen months, then the college may prefer a foreign national over an American. This standard and the 18 month prior recruitment time frame differs from both the RIR and traditional labor certification rules. (Rev. 01/05)
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