Labor Certification

Labor Certification Overview

Most of the foreign national who would like their employers to sponsor them for green card in the United States should first get the Labor Certification from the Department of Labor(DOL). This is the first step in the green card process. The labor certification is for a job in future, which is currently available to test the labor market. It is open for US workers(US citizen and Greencard holders).

The "alien" may only accept it upon receiving his/her permanent residence. The H-1, however, is for an entirely different job. So, technically, it is possible to work for a different employer while the person is on H1 with some other company. But for all practical purposes, it is extremely unlikely to find the employer who would file for the person's greencard when he/she is not working for the company. The labor certification is process is to be done always by the employer and not the alien beneficiary.

This process is lengthy and may take from few months to few years depending upon the jurisdiction of the DOL under which the job for which labor certification is being filed is. U.S. employers decide to petition for an immigrant worker only after an extensive, and unsuccessful, recruitment process in the domestic labor market. In this process a sponsoring employer files an application with the U.S. Department of Labor essentially stating that it is not possible to find a qualified U.S. worker to fill a position.

The foreign worker is being sponsored for permanent residency on the basis that he or she has the qualifications to fill the position. For the application to be approved, the employer is required to undergo a process of recruitment to prove to the Department of Labor that there are no U.S. workers available. Department of Labor certifies that the alien worker will not displace (in other words, there are no U.S. workers who are able, willing, qualified, and available to perform the job) nor adversely affect the wages and working conditions of U.S. workers who are similarly employed.

In order to get the labor certificate approved, the wage being offered to the alien must meet likely U.S. Department of Labor (US DOL) prevailing wage standards. As many employers are not comfortable advertising the exact wages, they can post a range of wages. The wage being offered(in case of range, the bottom of the range) should fall no lower than 5% below the prevailing wage for the job title. The wage may not include the commissions or bonuses unless they are guaranteed.

Minimum requirements for the job opportunity must be carefully analyzed and they should be consistent with the standards established by the DOL for job duties and requirements. Preventing immigrant labor from depressing the wages for American workers is one of the major reasons for the complexity of this process, and the failure of an employer to offer the prevailing wage is almost certain to seriously jeopardize your application process.

It must be bona fide job opportunity and must not be a sham. Job must be full time, "permanent" and job location must be in United States. The job requirements must be reasonable. The job opportunity should not involve unlawful discrimination. Job should not be available because of a strike or lockout. The terms, conditions, and environment of the job should not be contrary to law. The job opportunity has been and should clearly be open to any qualified U.S. worker.

The job title and description to correspond to one of the Dictionary of Occupational Title codes. Mix and match of job duties is not allowed even if it is appropriate or legitimate. An employer-employee relationship must exist. The employer must hire, fire, supervise and provide payment to employees. The job must have existed before the alien was hired, or the employer must document that there was a major change in the business that created the job after the alien was hired.

Exceptions to it are possible only if the employer is able to document a business necessity for a questionable duty and/or hiring requirement. The DOL generally does not regard job offers from relatives or from businesses in which the prospective immigrant owns an interest as being made in good faith.

The employer cannot describe the job in unduly restrictive terms. That is, the employer may not impose requirements that are not a legitimate part of the job. This is particularly true of requirements that the employee speak a language other than English.

While this is usually the easiest way to demonstrate that there are no similarly qualified U.S. workers available, if the employer includes such a requirement, the employer must prove that the job being offered could not be successfully performed without it. Proof usually consists of a detailed letter explaining why this is the case, together with other evidence, such as telephone bills to a foreign country or foreign language documents that are regularly used in the job.

The employer needs to demonstrate that the company is financially sound and it can afford to hire the employee. Employer may have to show INS the company's finances. The financial ability to pay must exist at the time of filing the labor certification and must continue to exist till the time you actually get your green card.

Labor certificate is valid indefinitely once granted, provided the job for which it was approved is still available. Getting a labor certificate approved does not change the person's non-immigrant status. He/She is still on the same non-immigrant status.

Labor Certification(LC) is entirely different from Labor Condition Application(LCA). LC is for getting green card and LCA is for getting H1B visa. LCA is much more easier and faster to get than LC.