Section 212(a)(5)(A) of the Immigration and Nationality Act ("INA") prohibits the entry of certain immigrants who are entering the United States to perform labor, unless the Secretary of Labor has certified that there is a shortage of U.S. workers to perform such labor and that the employment of the alien will not adversely affect wages and working conditions of such workers. An intending immigrant who requires a labor certification, but does not have one, is excludable.
Generally, the labor certification process seeks to ascertain the availability of minimally qualified U.S. workers for a specific job vacancy within a specific labor pool. If such an applicant is found during the recruitment process, a labor certification will not be approved. It is irrelevant that the minimally qualified U.S. worker is not the best qualified candidate for the job.
Labor certification requirements are applicable only to the second and third employment-based preference categories. Therefore, the labor certification requirement does not apply to the first employment-based preference, family-based immediate relative and preference categories, immigrant investors, special immigrants, or refugees.
The priority date for the consideration of an immigrant visa ordinarily is the date that the application for labor certification is filed. This is to ensure that the alien is not penalized for the time that is required to obtain a labor certification.
Overview of the Labor Certification Process
Form of Application
An application for labor certification under the DOL's permanent certification program (which is different from the temporary labor certification used in H-2B cases and the labor condition application used in H-1B cases) is submitted using Form ETA-750, which is a two-part form. Part A of Form ETA-750 describes the proposed job duties, minimum job requirements and contains several certifications (assertions), which must be made by the employer to demonstrate a good faith intention to recruit U.S. workers. Part B of Form ETA-750 discusses the qualifications of the alien.
According to the regulations of the Department of Labor ("DOL"), in a labor certification the job must be advertised only with requirements that represent the actual minimum requirements for the position. The job duties and requirements are supposed to be consistent with those contained in the Dictionary of Occupational Titles ("DOT").
The DOL is very suspicious of stated minimum requirements since the employer often attempts to reduce the number of qualified U.S. applicants by tailoring job requirements to the alien. The stated minimum requirements may not be "unduly restrictive." Requirements which are routinely identified as restrictive requirements include foreign language requirements, requirements which combine the job duties of two or more distinct occupations contained in the DOT, requirements for skills or training that is unavailable in the United States, experience in excess of the amount indicated in the DOT, and a requirement of a college or university education for a non-professional job.
If a restrictive requirement is identified by the DOL, the employer can still rebut this finding by showing that the requirement is justified as a business necessity. The applicable test was established by the Board of Immigration Appeals in Matter of Information Industries. To establish business necessity, the employer must show:
- that the proposed job requirement is reasonably related to the position, within the context of the employer's business; and
- that the proposed job requirement is essential to the reasonable performance of the job duties described by the employer.
DOL exercises authority to determine whether U.S. workers are qualified for a position. However, DOL does not exercise the same authority to assess whether the alien is qualified for the proposed position. This is normally left to the INS to determine. However, DOL has a limited role in assessing the alien's qualifications and may deny certification in the following situations:
- where the regulations explicitly authorize the Department of Labor to require proof of the alien's qualifications where the job offer is for a sheepherder, a live-in domestic worker, a physician, an alien claiming exceptional ability in the performing arts or a college or university professor;
- where an analysis of the alien's qualifications leads to the conclusion that the employer's job requirements have been tailored to meet the alien's own background; and
- where an analysis of the alien's qualifications leads to the conclusion that the alien was initially hired with less experience than what the employer now states are actual minimum requirements for the position.
The Prevailing Wage
The INA requires that the job being offered "not adversely affect the wages and working conditions of workers in the U.S. similarly employed." There is clearly no adverse effect if the alien is being offered the "prevailing wage." Therefore, the employer must be willing to pay to the alien, as well as offer to U.S. workers, a salary that equals or exceeds the prevailing wage.
However, in practice the salary offered may be slightly lower than the prevailing wage and still be accepted by the DOL. According to 20 CFR §656.40(a)(2)(i), a salary which falls within five percent of the prevailing wage for the occupation is acceptable, except for determinations made under a union contract or the Davis-Bacon or McNamara-O'Hara Acts.
The employer's unwillingness to offer or pay the prevailing wage will result in a denied labor certification.
The recruitment phase of a labor certification application typically consists of three distinct recruitment activities, usually occurring simultaneously:
- the employer recruits for U.S. workers in a medium most likely to attract qualified candidates, usually an advertisement in a local newspaper of general circulation for three consecutive days or a one-time ad in an appropriate professional magazine or trade journal;
- the employer engages in on-site recruitment by notifying the appropriate collective bargaining unit at the place of intended employment or, in the absence of such a collective bargaining unit, a ten-day posting of a job notice at its place of business; and
- the employer places a thirty day job order in the computerized job bank maintained by the State Employment Security Agency ("SESA") having jurisdiction over the employer's place of business.
The recruitment process is conducted under the supervision of the local SESA.
The employer must consider all qualified U.S. workers who apply as a result of the recruitment process. A U.S. worker means any worker who is a U.S. citizen, lawful permanent resident, a foreign national granted temporary residence under one of the 1986 legalization programs, a refugee and an asylee.
An employer may reject an applicant who, on the basis of information provided in the resume, clearly lacks one of more of the stated minimum qualifications for the position. However, if the applicant's resume raises a reasonable presumption that he or she may meet the stated minimum requirements, the employer must inquire further about the applicant's qualifications, normally by interviewing the applicant.
A job applicant who cannot be disqualified as clearly lacking one of more of the stated minimum requirements must be contacted as soon as possible for an interview. Such applicants who appear to meet the stated minimum requirements cannot be rejected for anything other than a lawful, job related reason. The DOL's Technical Assistance Guide ("TAG") identifies the following as lawful reasons for rejecting an applicant:
- the applicant failures to possess the training and experience required by the employer; or
- factors which may adversely affect the applicant's ability to satisfactorily perform the proposed job, including bad work references, poor health or an inability to communicate proficiently in the English language.
Reduction in Recruitment
DOL has the ability to waive the recruitment requirement, in whole or in part. This may occur where the employer requests reduction in recruitment ("RIR").
In the past, most employers did not seek RIR. However, in light of increasingly long backlogs for labor certification, RIR requests are becoming much more common.
On October 1, 1996, the DOL implemented several changes via General Administrative Letter No. 1-97 ("GAL No. 1-97"). According to GAL No. 1-97, RIR was to be encouraged in cases where:
- there was likely to be slight or no availability of U.S. workers;
- there were no restrictive requirements;
- the prevailing wage had been met;
- the employer could show adequate prior recruitment, within the last six months, using real world recruitment practices that were customary for the occupation or industry.
An employer who seeks RIR requests it in writing along with documentation of prior recruitment within the preceding six months. Both the SESA and DOL are to expedite processing of RIR requests.
If the DOL concludes that the prior recruitment was satisfactory, it will certify the application. If the DOL concludes that the prior recruitment was unacceptable, it may return the application to the SESA and direct them to start the recruitment period. If this occurs, the application will be treated like a normal labor certification case. However, in some regions the case will be denied and the employer will have to begin the entire process again. If this occurs, the priority date is lost and substantial delays may result therefrom.
Report of Recruitment Results
The employer must submit a report of the recruitment results at the end of the 30 day recruitment period. This report must:
- identify the recruitment source;
- state the number of U.S. workers who responded;
- provide the names, addresses and resumes of any U.S. workers who were interviewed and the job title of the interviewer; and
- explain, in great detail, the lawful job-related reason(s) for not hiring the applicant.
The report must contain the necessary supporting documentation.
Action by DOL
The local SESA reviews the recruitment report. Under GAL No. 1-97, certain straight-forward applications will be flagged as appropriate for Limited Review Processing. Such cases will be given expedited processing by DOL. Limited Review Processing will apply to cases that:
- offer the prevailing wage;
- have no special job requirements;
- have no unusual job duties;
- do not exceed the SVP code assigned to the occupation in the DOT;
- have no U.S. worker availability or the few U.S. workers who apply clearly do not meet the actual minimum requirements for the proposed position.
After reviewing the recruitment report, the SESA forwards the case for adjudication to one of the ten regional offices of the DOL. The Certifying Officer ("CO") of the Employment and Training Administration for the appropriate Regional Office makes the final decision on the labor certification application.
If the CO concludes that the recruitment was correctly carried out in good faith by the employer and no qualified U.S. workers were available, the labor certification will be approved. If the DOL finds a defect in the recruitment, the certifying officer will issue a Notice of Findings ("NOF"). Faced with a NOF, the employer can either follow the recommendations contained therein or attempt to rebut the finding through rebuttal evidence.
If a labor certification is ultimately denied by the DOL, the employer is not permitted to file a new application for the same position until six months after the date of the denial, unless the denial was based only upon the issue of prevailing wage.
Appeal of Denials
A denial of an application for labor certification may be reviewed by the Board of Alien Labor Certification Appeals ("BALCA"). BALCA may affirm the labor certification denial, direct the CO to approve the labor certification or remand the case to the CO for reconsideration in a manner consistent with its instructions.
Special Handling of Certain Occupations
Certain occupations are subject to what is known as "special handling." Some of these special handling categories are briefly described below:
College and University Teachers
Special handling for college and university teachers relieves the employer several obligations, including the need for further recruitment, the need to state salary in the recruitment advertising, and the need to submit applicants' names and resumes to the SESA. Most importantly, special handling allows employers to hire the most qualified individual rather than a minimally qualified U.S. worker.
The employer must demonstrate that it conducted a previous competitive recruitment selection process (involving at least one advertisement in a national professional journal), which found the alien to be more qualified than any of the U.S. workers who applied for the job. However, for special handling to apply, a labor certification application for a college or university teacher must be filed within eighteen months after the alien was selected for the job.
Aliens of Exceptional Ability in the Performing Arts
Special handling allows proposed employers of aliens of exceptional ability in the performing arts to hire the most qualified individual rather than a minimally qualified U.S. worker. However, the employer must demonstrate that the alien's work experience during the past twelve months required exceptional ability and that the job offered will also require exceptional ability. The employer must also document its prior recruitment efforts. This includes evidence that at least one advertisement was placed in a national publication appropriate to the occupation and that any unions customarily used as recruitment sources were unable to refer equally qualified workers.
Performing arts of exceptional ability are not included in Schedule A Group II precertification, since performing artists are specifically excluded from Schedule A Group II. Performing artists of exceptional ability must qualify for labor certification under this special handling procedure. Performing artists who do not have exceptional ability are subject to normal labor certification requirements.
Applications for Alien sheepherders must show that the alien has been employed legally as a nonimmigrant sheepherder for at least thirty-three of the last thirty-six months. Such applications are filed directly with a consulate or district director of the INS (instead of the SESA or DOL) and must be accompanied by signed letters from U.S. employers certifying such employment. The determination of the immigration or consular officer is conclusive and final.
Schedule A Precertifications
This group of occupations can benefit from blanket precertifications. As U.S. workers are acknowledged to be in short supply for these occupations, no individual labor certification is necessary. Schedule A includes the following occupations:
- physical therapists (Group I);
- professional nurses (Group I); and
- aliens of exceptional ability in the sciences or arts, except for aliens in the performing arts (Group II).
Schedule A precertifications are dealt with in detail here.
Schedule B Noncertifications
This group of occupations consist of identified jobs which require little or no education or training for adequate performance. As DOL has determined that there is a surplus of U.S. workers in these occupations, no individual labor certification is permitted for these occupations unless a waiver is granted by DOL. Schedule B is reproduced here.