A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the U.S.  In most instances, before the U.S. employer can submit an immigration petition to the Department of U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

 

The DOL processes applications for Alien Employment Certification. The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the USCIS service center with an I-140, Immigrant Petition for Alien Worker. You may access the State Department Visa Bulletin to learn which priority dates are currently being processed.

 

Note: Most foreign nationals can have this visa processed within 1 year in certain circumstances.

 

Qualifying Criteria. The employer must hire the foreign worker as a full-time employee; There must be a bona fide job opening available to U.S. workers; Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.  The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

 

Process for Filing. The employer must complete the appropriate application and meet several requirements including describing in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.

 

Prevailing wage.  Prior to filing, the employer must request a prevailing wage determination from the State having jurisdiction over the proposed area of intended employment, including the prevailing wage, the prevailing wage tracking number, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

 

Pre-Filing Recruitment Steps.  All employers filing the ETA application must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.  The employer must recruit under the standards for professional occupations if the occupation involved is on the list of occupations, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

 

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

 

Audits/Requests for Information. Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it. The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.

 

The USCIS Petition. After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with USCIS to receive permanent residency approval.

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