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With certain exceptions, aliens who come to the United States to reside permanently must have a job offer which the United States Secretary of Labor has certified will neither displace qualified American workers nor adversely affect wages and working conditions. Certification is obtained by an employer who files an Application for Alien Employment Certification on behalf of an employee. This article provides a very general outline of one of the most complex areas of immigration law - labor certification.
THE BASICS IN GETTING LABOR CERTIFICATION
Filing for labor certification is a two tier process involving the State Department of Labor and the federal U.S. Department of Labor through the Regional Office. The U.S. Department of Labor (DOL), through the Employment and Training Administration (ETA), has created a form which an employer must file with the State Department of Labor Employment Service Agency (SESA) in an effort to prove there are no qualified U.S. workers available. The SESA reviews the application for completeness, ensures compliance with regulatory standards, then places the job offer in a state-wide computerized job bank. The SESA also directs the employer in undertaking a recruitment process by placing advertisements through the SESA for the position and posting an internal notice of job opportunity at the proposed place of employment. All applications for the job opportunity received by the SESA are forwarded to the employer for review.
Upon completion of the recruitment process, an employer will submit a complete report of the recruitment results documenting the employer's contact with the referred applicants and the lawful job related reasons for which the applicants were rejected to the SESA, which is then forwarded to the regional DOL. The DOL will either approve (certify) the application or issue a Notice of Findings (NOF). The NOF is a notice of deficiencies in the application with suggestions for corrective action. After submission of a response to the NOF, the DOL will issue a final decision certifying or denying the application.
COMPLETING THE JOB DESCRIPTION AND QUALIFICATIONS
The job opportunity must be described in the application without unduly restrictive requirements. Requirements which seem specifically tailored to the alien's specific education or experience will be rejected. Foreign experience or language requirements will be closely reviewed and an employer must be able to document the "business necessity" of these requirements. Any job requirement beyond those "normal for the occupation" as defined by the DOL will be scrutinized carefully and the employer will have the burden of proving a bona fide business necessity for these "restrictive requirements".
In completing the alien's professional experience and academic qualification, the alien must meet the minimum standards for the job opportunity at the time the application is filed and cannot be trained by the employer in the job offered without the employer offering such training to U.S. workers. If the alien is currently in the job offered, the alien must have met the employer's minimum standards at the time of hire.
The SESA will make a determination of the prevailing wage for the job offered. The employer must offer at least ninety-five per cent of the established prevailing wage. If an employer disagrees with the SESA's prevailing wage determination, it is possible to provide alternative information regarding the prevailing wage. After what is usually a lengthy review process, the DOL will determine which prevailing wage determination is correct.
POSTING AND NOTICE
Unless a union represents the employer's employees in the classification and area in which the job offer is made, a notice must be conspicuously posted at the job site for ten business days. The notice must contain a description of the position as well as the salary offered. Although the posting of specific wage or salary information is inconsistent with the practices and policies of most employers, there is no waiver for this requirement.
ADVERTISING AND RECRUITMENT
Generally, under direction of the State Department of Labor SESA an advertisement must be placed in a newspaper of general circulation for three consecutive days (or in the appropriate professional trade publication for one or two days). The employer must provide a draft ad to the SESA for approval. The regulatory requirements for the contents of the advertisement are quite specific and include a description of the job duties as well as the experience and education requirements and the wage offered. The advertisement will direct responses to the SESA without any indication as to the name of the employer.
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 rejected applicant is not available or qualified for the position. The SESA will require submission of this documentation along with the resume submitted by each applicant. When an applicant is clearly unqualified based upon a review of the submitted resume, the employer need not conduct an interview. If the resume does not conclusively eliminate the applicant as unqualified, then the applicant should be contacted and interviewed by the employer (this can be done by telephone). Documentation of the employer's contact efforts is also required. The certification will not be granted if there is a qualified and available U.S. worker.
The complete labor certification process (with the exception of the RIR discussed below) may take from 12 to 36 months depending upon the job position and the location of proposed employment. Once obtained, a labor certification is critical documentation to obtain permanent residence through a second or third preference employment based immigrant visa petition.
REDUCTION IN RECRUITMENT REQUEST
As a result of General Administrative Letter 1-97 (GAL 1-97) implemented on October 1, 1996, an approved reduction in recruitment (RIR) request will result in expedited SESA and DOL processing reducing the labor certification processing time by one to two years. RIR requests are likely to be approved for those applications which involve positions for which there is little or no availability of U.S. workers where the employer can demonstrate an adequate prior recruitment effort within the last six months. Such recruitment should involves advertisements in newspapers, trade publications, Web sites, through recruiters and an internal posting at the employer's premises. Recruiting commonly used in the industry must be fully documented and the position description cannot contain special requirements. Depending on the proper geographic location for filing the labor certification, SESAs have varying individual requirements for RIR processing.