::::: GEORGE E CRIMARCO :::::IMMIGRATION & NATURALIZATION::::::

Labor Certification

The hiring of foreign workers for employment discrimination in the United States normally requires approval from several government agencies. With certain exceptions, aliens who come to the United States for permanent residence must have a job offer of which the United States Secretary of Labor has certified will neither displace qualified American workers nor adversely affect wages and working conditions. This certification is obtained by the employer who files an "Application for Alien Employment Certification." Once the application is certified (approved), the employer must petition the USCIS for a visa. Approval by DOL does not guarantee a visa issuance. The Department of State (DOS) will issue a visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the Immigration and Nationality Act (INA).

This letter is written to provide a very basic outline of the procedures involved. It is meant to be only a general description of the process.

1. THE BASIC PROCESS. The U.S. Department of Labor, through the Employment and Training Administration, has provided a form called "Application for Alien Employment Certification." The employer files the application, in duplicate, with the state employment service. The State local office reviews the application for completeness and to insure that it complies with legal requirements. If said office perceives a problem, it will send an "Assessment Notice" suggesting remedial action.

Once the application is in order, that local Office then places the job offered in a statewide computerized "job bank." It will also direct the employer to place an advertisement for the position and to internally post a notice of the job opening. Any applications received by the local office will be forwarded to the employer for interviews. Upon the completion of recruitment, the employer will file a report on the results of the recruitment with said local office. Said office will then forward the entire packet to the regional office of the Employment and Training Administration of the United States Department of Labor.

The Department of Labor will either approve the application or issue a "Notice of Findings." The "Notice of Findings" is a notice of deficiencies in the application and suggested corrective actions. After a Notice of Findings is responded to, the Department of Labor will issue a final determination.

2. THE JOB DESCRIPTION AND QUALIFICATIONS. The job opportunity must be described without unduly restrictive requirements. Requirements that seem tailored to the alien's specific education or experience will be rejected. Foreign language requirements will be reviewed very carefully and an employer must be able to document the business necessity of such a requirement. Any qualification required beyond those normal to the occupation will be scrutinized carefully and the employer will have the burden of proving a bona fide business necessity for such qualification.

3. WAGE OFFERED. The Employment Development Department (EDD) will make a determination of the prevailing wage for the job offered. The employer must offer at least ninety-five per cent of the prevailing wage. If an employer disagrees with EDD's prevailing wage determination, it is possible to provide alternative information regarding prevailing wage. The Department of Labor will determine which prevailing wage determination is correct.

4. ADVERTISING. An advertisement must be placed in a newspaper of general circulation for three consecutive days, or in a professional publication or other national publication, if appropriate to the position. The requirements of the contents of the advertisement are quite specific, and include a description of the job, experience and education requirements and the wage offered. The advertisement will direct responses to a blind post office box without any indication as to who is offering the job.

5. RESPONSES TO RECRUITMENT. As part of the application, the employer certifies that the job opportunity has been and is clearly open to any qualified U.S. worker. The employer is responsible for keeping a record of all applicants, and documenting why each is not available or qualified for the position, if that should be the case. The Department of Labor will require such documentation along with the resumes submitted by each applicant. Where a worker is clearly unqualified from the face of his or her resume, the employer need not interview him or her. If the resume does not conclusively eliminate the applicant as unqualified, then he or she must be interviewed (this can often be done over the telephone). The labor certificate cannot be granted if there is a qualified and available U.S. worker. This is true even if the alien is more qualified.

6. POSTING AND NOTICE. Notification to a union representative or bargaining agent that a labor certification application has been filed must be made if a union represents the employer's employees in the classification and area in which the job offer is made. If no such union exists, a notice must be conspicuously posted on the job site. The notice must contain a description of the position as well as the salary offered. Although the positing of wage or salary information is contrary to the practices and policies of many employers, there is no waiver for such requirement.

7. EMPLOYMENT AUTHORIZATION. Although the labor certificate is a prerequisite to obtaining permanent residence based upon a job offer, it is not employment authorization. The Department of Labor only certifies that no U.S. worker is qualified or available and that the wages and working conditions will not depress those of U.S. workers. Employment authorization can only be granted by the Immigration & Naturalization Service not the Department of Labor.

8. AGENCY RESPONSIBILITIES. Most of the actual processing of a labor certificate application is performed by the State Employment Service. However, it is the Department of Labor who makes the actual determination regarding the certification. Although the Department of Labor usually concurs with the State Agency, any recommendations or instructions by the State agency are not binding on the Department of Labor.

9. THE ATTORNEY'S JOB. Our job is to know how to apply the constantly changing laws and regulations in this area to the particularly facts in each client's case. This is a particularly important responsibility because many of the requirements for a successful labor certificate application are counter-intuitive to "real world" employment recruitment. We will analyze the possibilities of a successful application. We will also help prepare a realistic and accurate statement of qualifications and meet other requirements. We shepherd the employer and the alien employee through the entire process, keeping the employer informed of its obligations with regard to recruitment and responses. We, of course, cannot guarantee what the results will be of any particular test of the job market.