| 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
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
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.