A Labor Certification is a complex process that a U.S. employer seeks a Labor Certificate from the U.S. Department of Labor for the benefit of a prospective alien employee. A Labor Certificate is a pre-requisite for a U.S. employer to file an immigration petition for the alien employee based on EB-2 and EB-3 categories. In another word, it is the first step before filing EB-2 or EB-3 petitions.
In Labor Certification, the U.S. sponsoring employer is the petitioner and the prospective foreign employee is the beneficiary. Since the Labor Certification is filed for a prospective employment, it does not matter whether the alien works for the sponsoring employer during the application or after it is approved. Meanwhile, the sponsoring employer does not necessary to keep the alien’s employment. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after s/he received permanent residency.
The Labor Certification process is outlined below, with slight variations depending on the state in which it is filed.
1. The employer files form ETA 750 Parts A & B and its supporting documents with the State Workforce Commission;
2. The State Workforce Commission gives the employer a receipt and a priority date is established;
3. The State Workforce Commission reviews the application and provides feedback to the employer;
4. The employer modifies the application in accordance with the feedback received;
5. The State Workforce Commission requests that the employer begin a recruitment (job) campaign to test the local job market where the employment offer is located;
6. The State Workforce Commission posts an advertisement within its job databank for sixty (60) days;
7. The employer posts a job advertisement in a local newspaper where the employment offer is located for at least three (3) days;
8. Any inquiries received in response to the job posting are sent to the State Workforce Commission and then forwarded to the employer;
9. The employer conducts interviews of all prospective candidates;
10. The employer provides a summary of its recruitment efforts to the State Workforce Commission;
11. If the State Workforce Commission is satisfied that the employer has conducted good faith interviews and there are no qualified available U.S. workers to fill the job opening, it will submit a favorable recommendation to the Department of Labor;
12. The Department of Labor reviews the case and may raise additional questions or issues;
13. Once the Department of Labor is satisfied, the Labor Certification application is approved and a labor certificate is issued. The employer may then file an I-140 petition on behalf of the alien;
14. If the Department of Labor is not satisfied with the application, the application is denied and a notice of finding is issued. If the labor certification is denied, the employer may either submit an appeal to the Administrative Appeal Board of the Department of Labor or re-file the labor certification after six months.
The employer who files the application on behalf of the alien must attest to the following:
· The position is a bona fide full time permanent job offer located within the U.S.;
· The job offer meets prevailing U.S. wage requirements;
· The job offer’s working conditions and environment does not adversely affect U.S. workers; and
· There is no qualified U.S. worker available to accept the job offer. Requirements for the Beneficiary The Beneficiary who benefits from the application must attest to the following:
· He/she meets the educational and work requirements of the employment position at the time the Labor Certification is filed.
· He/she maintains valid U.S. status if living within the U.S.