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Labor Certification

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The employment based Green Card process starts with the Labor Certification Green card applicant. Employers that are filing, sponsoring, and initiating the Green card process based on the employment for that applicant need to first get the Labor Certification from the Department of Labor (DOL).

A Labor Certification is a document issued by the Department of Labor (DOL) that allows your employer to file an employment-based immigration petition on behalf of you (the alien). In the Labor Certification process, your employer will have to prove to the DOL that they were unable to find a suitable candidate for the job position in the domestic market. They will have to go through a rigorous process where they advertise for your position, carry out interviews and screening procedures and complete other formalities related to recruiting. Finally, your employer will file an application with the DOL stating that their efforts were not rewarded and they were unable to find a suitably qualified and experienced worker. As a result they wish to sponsor you (the foreign worker) for permanent residency since you have the required qualifications and expertise. They will also have to show the DOL that in employing you, they are not depriving any domestic worker (American) of a job. There are a number of other restrictions on the employer.

(Note: A Green Card Labor Certificate is not the same thing as Labor Condition Application. A Labor Certificate is for Green Card applicants while a Labor Condition Application is for H-1B applicants.) The Labor Certification Process can be divided into the following steps:

  1. The Application - The employer files the Labor Certification petition with the appropriate State Employment Security Agency (SESA) or State Workforce Agency (SWA). (The SESA of different states have different names.).The application form is DOL Form ETA-750. The instructions on this form provide a detailed description of the job profile, required educational qualifications, and the type of training and experience required for the applicant to be deemed suitable for the position. There will also be a statement of the prospective immigrant's qualifications.
  2. Review - The SESA date stamps the application which is the "priority date" for the case. The SESA then reviews the application and may request modifications. SESA will notify the employer of potential problems, including whether the minimum requirements for the position are reasonable, whether certain additional documentation is required, and determine whether the wage offered meets minimum prevailing wage standards.
  3. Recruiting Campaign - The employer will now begin a recruiting campaign, closely supervised by the SESA. Advertisements detailing company requirements are placed in newspapers and publications. All applicants who meet the requirements have to be interviewed.
  4. Results Submission - The employer will submit a detailed report of the recruiting campaign to SESA. The report should include proof that advertisements did indeed run in newspapers and it should justify the reasons for rejection of all (or any) of the applicants. The DOL reviews these reasons closely; especially at times when domestic unemployment levels are high. According to the DOL, a US worker who meets the minimum posted requirements for the job position should be offered the job before it offered to an alien. The SESA evaluates the report and forwards all information to the DOL.
  5. Final Decision - If the DOL agrees that no US workers are available to fill the position based upon fair recruitment efforts, they will approve the labor certification application. The DOL may deny a labor certification if they find the recruitment efforts were unfair or that US workers were disqualified for reasons that were not objective or did not meet the good faith requirements of the law.

How Long Does the Labor Certification Process Take?

The Labor Certification Process usually differs from state to state. Each state has its own wait period, depending on the number of pending cases. On an average, this process can take between six months and three years.

What is the Reduction-in-Recruitment Process?

The Reduction-in-Recruitment (RIR) is a fast track version of the conventional Labor Certification Process. The employer must request RIR processing at the time of submitting the ETA-750 form. In the conventional process, the employer submits an application and then makes recruiting efforts supervised by the SESA. In the RIR process, the employer must document that they have engaged (within the last six months) in a process of recruitment with the intention to hire US workers, but have been unsuccessful. The pattern of recruitment may vary depending on the nature of the occupation being requested and the labor market at the time of the job search. However, the minimum requirement is one print advertisement and evidence of other steps taken to search the labor market which may include use of the Internet, participation in job fairs, and other similar activities.

Differences Between Conventional and RIR Processing

In the RIR processing, the DOL focuses more on finding a pattern of recruitment than on the recruitment campaign alone. This means that the DOL is less concerned with explanations of why US workers were found unqualified or rejected for the position. The RIR procedure can reduce the decision making time on a labor certification from years to months (depending upon the area of the country and current backlogs at the DOL). If advertising has been extensive for the position then this is a good alternative procedure to the conventional labor certification process.

When Labor Certification is Not Required

Immigration petitions in the following categories do not require a Labor Certification:

  • All Family-Based immigration petitions
  • Company Intra-transfer Manager and Executives ( L1-A visa holder)
  • Aliens with Extraordinary abilities, Outstanding Researchers/Professors, and Intra-Company Transferees for Multinational Executives (EB-1)
  • NIWs or National Interest Waivers (EB-2)
  • Investors (EB-5)

If you or someone you know is need of family law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.