Labor Certification

A foreign person who has received an offer to work in the United States must be granted a labor certification prior to filing for a visa.  The employer who wishes to sponsor the applicant must prove that there are not sufficient American workers who are qualified, willing and available to fill the position, and that employing the foreign person  will not have a negative effect on the wages and working conditions of American workers in similar jobs.

The labor certification process consists of three phases that lead to permanent residency status. First, the employer who wishes to sponsor the applicant must apply for a Labor Certification on behalf of the applicant. This application is made to the United States Department of Labor (DOL). Next, the employer files a visa petition with the USCIS. After the petition has been filed, the applicant must apply either for an adjustment of status from non-immigrant to permanent resident, or for an immigrant visa from the United States consulate in his or her home country.

The process by which employers must provide initial documentation changed in 2005 with the passage of the Program Electronic Reveiw (PERM) law. Employers are now required to

• Obtain a prevailing wage determination from the State Workforce Agency (SWA). The employer must document that the offered wage will equal or exceed the prevailing wage.
•  Place a job order with the SWA for 30 days.
• Post a notice informing his or her employees about the application for labor certification for the foreign applicant. The notice must be posted for 10 consecutive business days, it must be clearly visible, and it must be posted in a place where the employees are likely to read it. If the employer publishes a print or online newsletter, the notice must be published there as well. If the employees of the facility belong to a union, their bargaining representative must also be informed that a labor certification application has been filed.
• Place two print advertisements for the position in the Sunday editions of the local newspaper with the widest circulation in the area. The advertisements must include the employer’s name, a description of the position, the geographic area and instructions for applicants to send resumes.

If the job is a professional position that requires a university degree, the employer must also provide evidence that he or she has sought American applicants for the position through at least three of the following methods:

•  Employee referral programs
• Recruiting at a job fair
• On-campus recruiting at universities
• Advertising on the employer’s company web site
• Advertising on an employment or job search web site
• Listing the position with campus placement offices
• Listing the position with employee recruitment firms
• Placing ads with trade organizations
• Running newspaper ads or spots on local radio or television stations

Only one of the steps listed above may take place within 30 days of filing the application for Labor Certification, and none of them may take place more than 180 days before filing