About Labor CertificationLabor Certification
Permanent vs. Temporary Labor Certification
Obtaining an approved Permanent Alien Labor Certification is the first step and the major hurdle in many green card cases. However, recent developments in the labor certification process may offer opportunities for new strategies in obtaining Lawful Permanent Residence for U.S. employers and their current or prospective alien employees. The principal development, described and explained below, is the shift within the U.S. Department of Labor (DOL) toward favoring a streamlined procedure called Reduction in Recruitment (RIR). The DOL processes most RIR cases on a "fast track" basis. Also, RIR labor certification recruitment is not supervised by the DOL, thus giving the employer greater freedoms. However, there are instances where it is preferable to utilize the traditional non-RIR labor certification method.
Alien labor certification is a procedure which employers must undertake in many cases to establish that there is not a qualified and available U.S. worker as an alternative to employing the alien in question on a permanent basis. In the past, the employer has normally been required to conduct a supervised recruitment and prove to the satisfaction of the DOL that a minimally qualified U.S. worker cannot be located and recruited to the employment. Although it can be a time consuming and expensive process, and a good outcome is not assured in any case, most employers who do not pursue immigrant visas for their knowledge worker professionals face the risk of losing invaluable alien employees to their competitors.
Labor
Certification Exempt Categories
There
are a number of immigrant visa categories that
are exempt from the labor certification requirement. In a nutshell, these
categories are for wealthy investors, religious workers, world-renowned
individuals, "outstanding" researchers and professors, aliens of
exceptional ability or holding advanced degrees whose work will benefit the
"public interest" of the U.S. and managers/executives of multinational
corporations. In short, the
following nonimmigrants could be exempted from the labor certification
requirement (meaning the green card case begins with the filing of a petition
with the INS (and not the Department of Labor):
The
balance of this section addresses the LPR pathway for the large majority of
aliens who must necessarily undertake the alien labor certification process. In what the DOL refers to as "basic
processing" or "Non- RIR processing", the employer
is required to file a carefully prepared set of forms and
supporting documentation with the State Employment Service Agency (SESA). All 50 states including the District of Columbia and the
U.S. Territories of Guam, Puerto Rico and U.S. Virgin Islands
have a SESA. There are numerous tactical and strategic
considerations which come into play in the description of the job
duties and requirements, with the goal of navigating through the
process to a successful outcome. The typical strategy is for an
employer to describe the job duties and requirements in the most
restrictive manner that the DOL will permit, so that U.S.
applicants will not be minimally qualified and the alien can get
the labor certification as desired. Under this model, it is
important to educate the DOL about the "business
necessity" of the employer's described duties and
requirements, often utilizing industry material and other
documentation to corroborate the company's position. Under basic processing, the SESA monitors and
coordinates the recruitment process; at its conclusion the
documentation is forwarded to the Regional Certifying Officer of
the DOL for analysis and adjudication of the employer's
application. In the basic process, the SESA will refer U.S.
applicants for the employer's consideration. Managerial
personnel, Human Resources professionals and immigration legal
counsel might typically confer to prepare for interviews with
applicants and to document what occurred and developed during the
interviews so that the employer could respond to the DOL in hopes
of establishing that the U.S. workers who applied did not meet
the requirements or were not able to perform the duties of the
position. The first step of the ordinary labor
certification process is to file an application (Form ETA-750)
with the SESA. The application consists of the following
items: For a variety of reasons, basic processing is
usually not the preferred method for obtaining labor
certification. First and foremost are the lengthy
processing times. Labor certification cases on the West
Coast take so long to process (sometimes several years), that
basic processing is almost self-defeating. However, there
are instances (and DOL Regions) where ordinary labor
certification is a viable choice. For example, a case filed
in Region VI may only take 7 to 9 months to process. Some
alien beneficiaries, specifically EB-2 and EB-3 aliens from India
and China, may be subject to lengthy backlogs for obtaining an
immigrant visa due to their peculiar per country
limits. In such cases, obtaining an early
priority date is often paramount. Since basic processing
cases may be filed without spending several months building a
recruitment campaign, the alien can obtain an immediate priority
date (a place in line). Basic processing may be an
appropriate choice when the following factors exist: If one of these factors is absent, RIR processing
is probably a better alternative. If an employer has
recently laid off similarly situated The U.S. Department of
Labor's Regional Offices monitor the job markets in each region.
The DOL pays particularly close attention to the large national
employers in each region. If a large
national employer has recently laid off hundreds of workers in a particular
geographic area, the DOL's Regional Certifying Officer will usually request an
explanation that the foreign national's permanent job offer is distinguishable
from that of the In some DOL Regions,
the Certifying Officers have refused to approve applications
for permanent labor certification for certain employers who have laid off many
workers. Even in the instance where
the application for permanent labor
certification was filed years before the employer experienced layoffs, some
Certifying Officers have denied the application for permanent labor
certification on the grounds that a permanent job offer no longer exists.
An experienced immigration attorney can often provide strategies
to salvage the application or to pursue an alternative immigrant visa category.
A Reduction in Recruitment (RIR) Request is a
method whereby a qualifying employer may be able to obtain labor
certification from the DOL without having to conduct a
post-filing U.S. DOL-supervised recruitment process. Although RIR
processing has been on the books for years, RIR cases were almost
never granted until the Department of Labor published its General
Administration Letter No. 1-97 (GAL 1-97) advising all state
employment security agencies (SESAs) and the U.S. DOL's regional
offices to increase efficiency in the labor certification process
and to encourage and grant RIRs. There are four elements which an employer must
show in order for the RIR to be granted: The above four elements must be met to prove
that the employer has adequately tested the labor market at the
prevailing wage and working conditions through
advertising/recruiting sources normal to the industry/occupation within
the previous 6 months. In order to avoid a determination by the U.S.
DOL that the minimum requirements, including any special
requirements, of the position as listed on the Form ETA 750 are
"unduly restrictive", it is prudent not to list any
"special requirements" in the recruitment effort or on
the application, unless the requirement is absolute or statutory,
such as state licensure and board certification for a physician. It may be possible to indirectly state special requirements by
blending them into the job duties or by stating them as a
component of a work experience requirement which appears on its
face to be typical or standard to the industry. Under the RIR model, the effort which
immigration lawyers engage to explain the job's duties and
requirements to establish the "business necessity"
inherent in the duties and requirements in basic processing cases
can now be channeled into a somewhat simpler letter from the
employer which explains how and why the job's stated duties and
requirements are typical in the employer's organization and the
industry at large. Moreover, some Regional DOL offices do not
even require such letters. If the DOL is satisfied with the pre-filing
recruitment efforts, which must be documented through original
print advertisements and a letter summarizing the results of the
recruitment, the likelihood of success for a complete reduction
in recruitment (and thus an exemption from the supervised
post-filing recruitment) is strong. The RIR strategy for any employer depends upon
the occupation for which labor certification is being sought. For
employers seeking labor certification for multiple alien
professionals in one or more occupations, the RIR strategy will
also depend upon the aliens' particular degrees and work
experience levels as well as the employer's actual minimum
education and experience requirements for the position(s). Multiple-beneficiary labor certifications
require more extensive planning. Whether the employer is filing for
several or several hundred workers, successful, cohesive corporate labor certification strategies
require an initial assessment period to review the selected
aliens' credentials, the employers' specific job
duties/requirements and the employers' current/previous
recruitment practices. The initial assessment can be a major
undertaking if the company's selected alien professionals are
spread across several offices or divisions throughout several
geographic regions. Current or potential changes in corporate
structure (e.g. mergers and acquisitions) and corporate personnel
(e.g. past or anticipated layoffs) or the existence of a
collective bargaining agreement and other potential deal-breakers
can be detected during the initial assessment. In some instances, the employer can take
advantage of the fact that there is a recognized shortage workers
in the certain field (information technology). In such cases, a
generic "real world" advertisement should be utilized. In other occupations where there are no definitive shortages of
U.S. workers, more descriptive advertisements (e.g. job duties,
minimum requirements, etc.) may be necessary to filter out
potential unqualified applicants. From a tactical standpoint, RIR campaign
advertisements should not contain a specific salary offer. In the event the SESA and DOL later determine that the wage
offered is lower than the prevailing wage, the employer's
pre-filing advertisements (with no salary stated) will remain functionable.
False starts waste advertising expenses and
precious time. The source and frequency of print advertisements
are major considerations in RIR cases. The DOL requires the
employer to submit with the application for labor certification,
at least two or three "tear sheets" (original print ads)
published within the immediately preceding 6 months. The 6-month
window is constantly moving in time. Thus, stale print ads which
pre-date the 6-month window are not considered by the DOL. Some
Regional DOL Offices require only two or three months of
documented recruitment in either a newspaper or national journal
of large circulation. However, most Regional DOL Offices require
at least three months of recruitment. Although non-print
recruitment such as internet postings, job fairs and
in-house/external recruiters can strengthen an employer's RIR
case of ongoing unsuccessful recruitment efforts, the DOL
generally focuses only upon the employer's print advertising
recruitment. As a general rule, employers should submit national
journal and/or newspaper print ads from at least 3 or 4 preceding months in the 6-month window.
While some Regional DOL
Offices may let certain nationally-recognized corporations slide
with only one or two print ads, employers would be wise to
bolster their RIR advertising campaigns with staggered print
advertising (e.g. once a month in a national journal or three-day
ads each month in a newspaper).
All Reduction In Recruitment Request (RIR) and
basic processing labor certification cases originate with the
Reduction in Recruitment (RIR)
Processing Times at the
SESAs and Regional DOL Offices
Reduction In Recruitment Cases
Once the SESA has initially reviewed the RIR application for completeness, it makes a recommendation and transmits the case to the DOL Regional Office which has jurisdiction over the SESA's geographic area. Although the DOL has contemplated consolidating its Regional Offices, there are currently 10 Regional Offices:
Each Regional Office has a Regional Certifying Officer who adjudicates the RIR application.
Much like the SESAs, the processing times of the 10 Regional DOL offices vary depending upon the volume of cases filed and the Office's allotted resources. The processing times are subject to change, as any Regional Office can become suddenly backlogged. Although RIR cases are "priority" processing cases for the U.S. DOL (compared to basic processing cases), the processing times vary among the different regions. Most Regional Offices process RIR cases in 3 to 4 months.
Processing Times at the
SESAs and Regional DOL Offices
Basic Processing Cases
The SESA and DOL processing times for basic processing cases are generally much slower than the "fast-track" RIR cases. In basic processing cases , the SESA must open a job order for each case, send recruitment instructions to the employer and supervise the recruitment process (refer applicants to the employer). Thus, there is more work for the SESA to complete.
The initial SESA processing times (the time from which the application is received to the time the SESA sends initial instructions to begin the recruitment process) of the various SESAs disparage greatly. Some SESAs are "current", meaning they open a job order and send recruitment instructions within 30 days. Other SESAs are so backlogged, the employer may wait for more than a year to receive instructions to begin with the recruitment. Most SESAs generally send instructions 4-8 months from receipt of the application. Once the employer has completed the supervised recruitment (generally 30-60 days) and results are documented to the SESA, the case is forwarded to the DOL Regional Office.
The lengthy basic processing times create special problems for certain foreign professionals.
In the past, many foreign professionals nearing the end of their 6 years of H-1B eligibility did not have enough time to obtain both a successful labor certification from the DOL and approved immigrant visa petition from the INS without interruption in their continuous employment. However, under new regulations which became effective at the end of the 2000 calendar year, H-1B professionals are eligible for 1 year extensions of H-1B status if their applications for labor certification have been pending for more than 365 days prior to the end of the 6-year H-1B stay. In short, an H-1B professional can get 1-year extensions until he or she completes the green card process (or obtains an Employment Authorization Document during the adjustment of status phase). For a different reason (see discussion of Indian and Chinese Professionals), foreign professionals from India and mainland China sometimes have similar time constraints.
Foreign professionals from India and PR China with approved labor certifications and immigrant visa petitions have to wait for visa eligibility from the U.S. Department of State (DOS) before applying for and acquiring LPR status. Foreign professionals from other countries may apply immediately upon INS approval of the employer's immigrant visa petition. Depending on whether the Indian or PRC professional qualifies for the 2nd or 3rd preference immigrant visa category, the wait or "backlog" was several years. Although the 2nd and 3rd preference immigrant visa categories are presently "current" for Indian and PRC nationals, the backlogs are certain to return.
Most Indian and PRC professionals have an in-depth understanding of the backlogs in immigrant visa availability. They are usually concerned (and rightly so) that the entire immigrant visa process and lengthy backlog for visa availability will exceed their 6 years of H-1B nonimmigrant stay in the United States. As a result, most Indian and PRC professionals would like to begin their immigrant visa cases (i.e. start the labor certification process) immediately upon entry into the U.S. Also, because the wait for immigrant visa availability is shorter in the 2nd preference category, virtually all Indian and PRC professionals with advanced degrees desire to be petitioned in this category. The 2nd preference category is reserved for alien professionals with advanced degrees (e.g. Masters and Doctoral).
Once a labor certification case is filed with the SESA, the alien is assigned a "priority date". The priority date is the alien's place in line for the DOS' visa availability. The earlier the Indian or PRC professional establishes a priority date, the greater likelihood he or she will be able to successfully acquire LPR status without any interruption in his or her authorized employment or stay in the U.S.
Because of the particular time constraints, the labor certification method and immigrant visa category chosen by the employer are often critical. Although a well-planned RIR labor certification case is more likely to have a successful outcome (recruitment is not supervised) and the processing is faster, the interests of some Indian and PRC professionals would be better served if the employer filed a basic processing application. Since RIR labor certification cases require proof of pre-application recruitment, RIR cases cannot be filed with the SESA until the employer has conducted an adequate advertising campaign. Basic processing cases can be filed without delay, thus locking in the alien's "priority date". However, basic processing labor certification cases for entry-level professionals are often risky because the pool of potentially qualified U.S. workers is larger than that for more senior professionals.
Although Indian and PRC professionals with advanced degrees prefer to be petitioned in the 2nd preference category, the mere fact that he or she has an advanced degree does not necessarily make it so. To qualify for the 2nd preference category, the alien must have an advanced degree (or equivalent) and the employer must require an advanced degree as a minimum requirement for the position offered. For example, an employer that has three computer programmers working side by side has a difficult task in proving that a master's degree in computer science is a minimum requirement when the two other programmers have only a bachelor's degree or a work experience equivalent. Sometimes strategies can be developed for such situations; however, the lesson here is that the employer must be able to corroborate the advanced degree requirement.
Logically, one might ask whether an employer can simultaneously file an RIR and basic processing case to best protect the interests of the India and PRC-born professionals. This maneuver has been the subject of some discussions between our professional association, the American Immigration Lawyers Association, and the DOL at recent liaison meetings. Hopefully new procedures will be implemented to permit this practice. However, at present, most Regional DOL Offices believe (perhaps prematurely) there is a prohibition for such.
For what it is worth, the DOL remands a rejected RIR application to the SESA with instruction to retool it for basic processing. However, the "priority date" is preserved. Unfortunately, this conversion is unilateral: the DOL will not convert basic processing cases into RIR cases. Thus, an employer cannot file a basic processing application, conduct its own 6-month recruitment campaign and then request conversion to RIR. Such a ploy would be treated as a new filing with a new priority date.
In general, an employer filing an application for permanent alien labor
certification must offer within 95% of the prevailing wage. However, in
some instances the employer must offer 100% of the prevailing wage. The
"prevailing wage" is determined by the state's department of labor or
SESA (state employment security agency).
The Wage Hierarchy
Wages Subject to Davis-Bacon Act or Service Contract Act:
If the occupation is one that is covered by a government (U.S.) contract, especially if such government contracts are with local businesses, the SESA will look to the Davis Bacon Act or the McNamara-O’Hara Service Contract Act (hereinafter “Service Contract Act”) as the source for the prevailing wage. This is true even if the petitioning employer does not have a contract with the U.S. government. The mere fact that such a contract exists between the government and any employer subjects the occupation to the applicable Act.
Wages Subject to Collective Bargaining Agreements (Union Wages)
Occupations that do not fall under either the Davis-Bacon Act or Service Contract Act may nevertheless be covered by a collective bargaining agreement. If the occupation is covered by a collective bargaining agreement in the Metropolitan Statistical Area (MSA), the SESA will determine that the prevailing wage for the occupation is the same as the union wage. If the wage rate was set in a union contract, it will be considered the prevailing wage. Thus, in such an event, the petitioning employer must offer 100% (not 95%) of the union wage.
Wages Subject to OES Survey
The SESA looks to the Occupational Employment Statistics (OES) survey if the occupation is not covered by the Davis-Bacon Act, Service Contract Act or a collective bargaining agreement. Most labor certification cases are for occupations covered by the OES survey.
If the SESA cannot find a match in the OES Dictionary, it may match it to a similar, yet higher level occupation which may result in an inaccurate, inflated prevailing wage determination.
An employer may use an approved labor certification obtained for another foreign employee if the original beneficiary alien is not using the approved labor certification. However, the substituted foreign employee must:
be employed in the same occupation as the original beneficiary;
be offered the same wage (or higher) as the original beneficiary; and
meet
the minimum job requirements as stated on the approved form ETA 750.
In
some instances, foreign nationals who have been out-of-status for more than 180
days can take advantage of the substitution rule and eventually obtain green
cards. Prior to April
30, 2001, out-of-status or “unlawfully present” aliens could be sponsored
for employment-based green cards through the LIFE Act if they were present in
the U.S. on December 20, 2000. The
LIFE Act permits aliens who filed proper applications on or before April 30,
2001 to eventually obtain permanent resident status (“green cards”) through
the payment of a $1000 penalty fee at the end of the green card process.
If the out-of-status alien is the beneficiary of an application for
permanent labor certification or a petition for an immigrant visa (e.g. I-130
relative or I-140 employment petition) properly filed with the U.S. DOL or INS
on or before April 30, 2001, he or she can be a substituted beneficiary and be
“grandfathered” for purposes of the LIFE Act.
If the out-of-status alien (or the alien’s previous/current employer)
did not initiate the green card process on or before April 30, 2001, the
out-of-status alien is not “grandfathered” under the LIFE Act via a
substitution.
Affects of Mergers and Other Changes In Employment
Employer changes, whether they be alien-initiated or employer-initiated (e.g. mergers, acquisitions and other corporate changes) are commonplace in today's volatile market. The immigration consequences of such occurrences and transactions are often complex and far-reaching. Usually, a material change in the employment will affect the pending or approved application for permanent labor certification.
In large transactions, the immigration concerns are usually secondary to other business considerations (liability, tax, etc.). Nevertheless, the transfer of foreign employees with pending or approved labor certifications from the previous entity to the new entity should be strategically planned prior to the proposed transaction. A consultation with the client before the deal takes place will often help the company to avoid Immigration Reform and Control Act (IRCA) violations and other after-the-fact Human Resources complications inherent in mergers and other transactions.
Avoiding Pitfalls:
Strategic Planning
Most labor certification denials (or Notices of Findings) are avoidable. Labor certification cases require a great deal of analysis and strategic planning. The occupation selected (from the Dictionary of Occupational Titles), the description of the job duties, the education and experience requirements chosen, and the listing of the alien's prior qualifying work experience are pivotal in determining the final outcome. A poor decision with any of these drafting considerations can prove fatal. Labor certification is such an arcane process, an experienced immigration attorney should be consulted in every case.
Many employers and novice attorneys make the fatal mistake of filing cases in which the occupation selected was not a professional or skilled labor occupation. Only certain occupations qualify for employment-based 3rd preference immigrant visas. At a minimum, the occupation selected must require at least two years of training, education or experience (or any combination thereof). For example, an occupation requiring one year of education plus one year of experience ostensibly would qualify for labor certification and consequently, an immigrant visa.
At the outset of each case, the Department of Labor's Dictionary of Occupational Titles (DOT) should be consulted. Last edited in 1991, the DOT contains, at least in theory, every possible occupational title and job description. Even where an employer selects a title not contained in the DOT, upon receipt of the filed Form ETA 750, the SESA will find the closest DOT "match". A bad "match" can sometimes be fatal, so it is usually wise to select a title in the DOT.
Temporary Labor
Certification
Overview
All U.S. employers seeking to employ foreign workers in H-2B status must obtain an approved "temporary labor certification" from the U.S. Department of Labor (DOL). To obtain a temporary labor certification, the employer must prove that there are no qualified U.S. workers (or not enough U.S. workers) available for the position in the intended area of employment. To prove the unavailability of sufficient U.S. workers, the employer must undergo a modified, accelerated version of the labor certification process required for certain permanent workers.
All applications for temporary labor certification are initially filed with State Employment Service Agency (SESA) of the state where the foreign workers will perform the services. The temporary labor certification package which is filed with the SESA consists of the Form ETA 750 (Application for Alien Labor Certification) and the following documentation:
Upon receiving the application for temporary labor certification, the SESA will review the job offer for completeness. A job offer containing a wage below the prevailing wage for such employment in the local area would cause the application to be "kicked back" as unacceptable; the employer has the option to raise the offered wage.
Once the application for temporary labor certification is filed, the SESA will create a job order and request the employer to advertise the position locally. If the SESA refers any qualified U.S. applicants to the employer, the employer must make every effort to interview and hire the applicant. The number of foreign workers for which an employer may obtain labor certification is reduced by the number of U.S. workers it hires for the occupation during the labor certification recruitment process.
Because the temporary labor certification process may take up to 60 days, employers should start the labor certification process 120 days before the aliens' services are needed. An employer may not file an application for temporary labor certification earlier than 120 days before the aliens' services are needed. It is possible in some cases to amend the application to move back the start-up date.
U.S. Department of Labor Review and Certification
Although the SESA handles the initial processing of the application for temporary labor certification, the U.S. DOL adjudicates the application. In determining whether to approve or deny an application for temporary labor certification, the DOL considers the following factors: