Labor Certification

Overview

For most people, the initial step in obtaining permanent residence based on employment is labor certification. In short, labor certification is a determination by the U. S. Department of Labor (DOL) that there is no qualified available U. S. worker willing to fill the position offered and that employment of the foreign national whom the employer intends to hire will not adversely affect the job opportunities, wages and working conditions of U.S. workers.  In order to obtain labor certification, the employer must demonstrate that proper recruitment efforts were undertaken and that no qualified U.S. worker applied for the job. It is often the most cumbersome, difficult, and lengthy aspect of the permanent residency process. DOL’s new PERM (Program Electronic Review Management) System requires more recruitment than was required in the past, but has, for the time being, sped up processing of labor certification applications.

Perhaps the most troublesome aspect of process is that, in most cases, a U. S. worker need only meet the minimum qualifications for the position in order to be considered qualified by DOL. In other words, the employer does not simply establish that the foreign national on whose behalf it seeks certification is the most qualified applicant; it must establish that there are no U.S. workers meeting the minimum requirements for the position. College and university teachers and performing artists of exceptional ability are not subject to this standard, and for them the employer need only establish that the alien is the more qualified than U.S. applicants.  

Who Needs Labor Certification

Labor certification is required only for persons seeking to immigrate on the basis of employment. It is not necessary for those seeking to immigrate on the basis of a family relationship to a U. S. citizen or Lawful Permanent Resident, “diversity immigrants,” or refugees and asylees. Some categories of employment-based immigration do not require labor certification. 

Labor certification not required. Labor certification is not required for the first preference category (EB-1). This category includes: aliens of extraordinary ability in the sciences, arts, education, business, and athletics; outstanding professors and researchers; and multinational executives. Additionally, labor certification is not required for the fourth preference  (“special immigrants”) and fifth preference (investors).

Labor certification required. Labor certification is required for the second preference and third preference, with some exceptions. The second preference includes: aliens of exceptional ability in the arts, sciences, or business; and aliens with advanced degrees in professional fields. The third preference includes: aliens with bachelor’s degrees in their fields; skilled workers; and unskilled workers. The exceptions to the requirement exists for the following individuals:

• EB-2s with National Interest Waiver, referring to persons who qualify for the second preference and whose services are deemed to be in the national interest (and who receive a "national interest waiver").
• Qualified Physical Therapists and Professional Nurses (Schedule A, Group 1), referring to persons who qualify for the second preference (EB-2) or third preference (EB-3), and who work in occupations listed on Dept. of Labor’s Schedule A, Group 1, which currently includes only qualified physical therapists and professional nurses;
• Certain EB-2 Aliens of exceptional ability (Schedule A, Group 2), refering to persons who qualify for the second preference (EB-2), and who are aliens of “exceptional ability in the sciences or arts” as defined in Dept. of Labor’s Schedule A, Group 2.
• Certain qualified graduates of foreign medical schools (Schedule A, Group 2) (particularly those unable to use the EB-1 extraordinary ability category, which is not subject to the labor certification requirement, and those in the EB-2 category for whom the labor certification requirement has been waived), can often be classified in Schedule A, Group 2. Many people who qualify for Schedule A, Group 2 choose to proceed as an EB-1 alien of extraordinary ability since the criteria are very similar.  

How to Obtain Labor Certification

The employer must undertake a proper recruitment campaign in order to qualify the job opportunity for labor certification.  This involves advertising the position in a variety of venues and engaging in other efforts to recruit qualified U.S. workers and properly documenting these efforts.  Under PERM the required recruitment varies by the kind of position—professional, nonprofessional, and college/university teachers—and there are some mandatory steps and some options from which the employer may choose.  While DOL has repeatedly stated that it has considered the common practices of employers in crafting the regulatory requirements, most employers find that “real world recruitment” does not suffice for labor certification. 

While some employers regularly undertake recruitment efforts that will satisfy DOL, most do not.  This requires that after a foreign national has been hired, for instance as an H-1B or TN nonimmigrant, the employer must conduct a new and proper recruitment campaign if the job opportunity is to qualify for labor certification.  In practice, this means that foreign national employees who hold a nonimmigrant status must watch as their jobs are advertised, and applications accepted, and only after the employer can show that no qualified U.S. workers applied can it move forward in obtaining permanent residence for the employee begin.  The process must be handled very carefully if the employer is to meet its legal requirements but not encourage applicants that the employer would consider unqualified but whom DOL might consider qualified or at least “trainable.”