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SUMMARY OF THE LABOR
CERTIFICATION
REQUIREMENTS AND
PROCESS
The Basic Requirement
The Immigration and Naturalization Act (INA) requires that some aliens
seeking to immigrate on the basis of an offer of U.S. employment first receive a
labor certification from the U.S. Department of Labor (DOL). That requirement is
set out in 212(a) (5) (A) of the INA as a ground for exclusion from the United
States: Aliens seeking to immigrate in the second or third employment-based
preferences are excludable unless the Secretary of Labor has first issued a
labor certification.
Who Needs a
Labor Certification
As just noted, the labor certification ground for exclusion applies only
to aliens seeking permanent residence in the second or third employment-based
preferences. The second employment-based preference covers aliens with
exceptional ability in the sciences, arts, or business, and aliens with advanced
degrees in the professional fields; under limited circumstances, a small group
of the aliens may be exempted from the labor certification requirement, as
discussed below. The third employment-based preference covers aliens with
bachelor's degrees in their fields, skilled workers, and unskilled workers.
These preferences are roughly equivalent to the third and sixth preference
categories covered by the Immigration Act of 1990 (1990 Act). Some aliens who
would have been included in the third preference prior to the 1990 Act, however,
are now covered by the first employment-based preference and are not required to
obtain labor certification, as described in the next paragraph.
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Who Does
Not Need a Labor Certification
Aliens seeking to
immigrate on any other basis, including the first, fourth, and fifth
employment-based preferences, do not need to obtain a labor certification.
Therefore, aliens immigrating on the basis of a family relationship, diversity
immigrants, refugees and asylees do not need to obtain labor certifications,
even though many of those aliens will be undertaking employment in the United
States.
With regard to
those aliens who will be immigrating on the basis of employment but who do not
need a labor certification, the first employment-based preference covers
"priority workers." That group is defined by the INA to include (1) aliens with
extraordinary ability in the sciences, arts, education, business, and athletics;
(2) outstanding professors and researchers; and (3) executives and managers with
multinational corporations who meet the labor certification requirement prior to
the 1990 Act, although many of them would have been "pre-certified" under DOL
rules exempting some types of job offers from the usual labor certification
procedures.
The fourth
employment-based preference covers aliens who are classified as "special
immigrants" by the INA. This group includes ministers of religion and other
religious workers, aliens who have worked abroad for the U.S. government, and
other narrowly-defined groups. Even under the law prior to the 1990 Act, special
immigrants did not require labor certification.
The fifth
employment-based preference covers alien investors in new commercial
enterprises. Prior to the 1990 Act, there was little opportunity for such
investors to immigrate because an employer is barred under DOL rules from
obtaining a labor certification for an alien when that alien owns the employer,
see 6.5, below. By exempting this group from the labor certification
requirement, the 1990 Act made immigration possible for alien investors. Few
investors, however, have taken advantage of the fifth employment-based
preference (about 1,000 petitions filed since October 1, 1991, fewer than 500
approved), because of the onerous requirements for qualification imposed both by
the law itself and Immigration Service rules. Many investors have chosen instead
to contend with the stringent interpretation of the DOL with regard to labor
certifications in ownership situations.
As noted above,
even some aliens in the second employment-based preference may be exempted from
the labor certification requirement if they are also exempted from the
requirement of a special offer of employment in the United States. The Attorney
General may grant such an exemption premised on the national interest. Although
the "national interest" is not defined in the law or in Immigration Service
rules, administrative cases interpreting this provision have been surprisingly
liberal in granting exemption from the job offer requirement and, therefore, the
labor certification requirement for aliens in the second employment-based
preference.
Because avoiding
labor certification makes a permanent residence case both simpler and faster to
process, practitioners want to investigate thoroughly whether the alien fits
within any of the groups just described. For a detailed discussion of the
requirements to qualify in the first, second (national interest waiver), fourth,
and fifth employment-based preferences, see Chapter 10 of the Immigration
Procedures Handbook.
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What the Department of Labor Must
Certify
The labor
certification ground for exclusion, 212(a)(5)(A) of the INA, requires that the
Secretary of Labor make two findings as part of the labor
certification:
Qualified U.S.
workers cannot be found, at the time of filing the application and in the area
of intended employment, who are available, willing, and able to fill the
position being offered to the alien; and Employment of the alien will not
adversely affect the wages and working conditions of similar employed U.S.
workers.
Because the labor
certification requirement is framed as a ground for exclusion that the alien
must overcome in order to be accorded permanent resident status, it is clear
that the burden falls on the employer and the alien to establish that the
certification can be made. The authority of the Secretary of Labor to issue
labor certifications has been delegated to the certifying officers (COs) of the
ten DOL regions. Although the COs make the labor certification determination, a
role in the process has been given to the District of Columbia. That role is
based on the Wagner-Peyser Act of 1933, which provides the SESAs with federal
funds as long as they undertake certain responsibilities, including a role in
the labor certification process.
The DOL has
interpreted the exclusion ground to require that the employer offer to pay the
alien at least the prevailing wage for similarly employed U.S. workers in the
area of intended employment (the employer must also offer working
conditions-hours, vacations, benefits-comparable to those offered similarly
employed U.S. workers, but working conditions are rarely an issue in labor
certification applications). It has also interpreted the statute to require that
the employer undertake a recruitment campaign to determine the availability of
qualified U.S. workers, and the employer must express a willingness to hire a
qualified U.S. worker for the position if one is available. A U.S. worker who
meets the employer's minimum requirements for the job is considered available
even if the alien is equally or more qualified; the employer must express a
willingness to hire any minimally qualified U.S. worker under the DOL
interpretation of the labor certification requirement. U.S. workers include
citizens, permanent resident aliens, aliens granted temporary residence under
one of the 1986 legalization programs, refugees, and asylees.
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Bona Fide Job
Opportunity
Because the employer must affirm that it is willing to hire a qualified
and available U.S. worker, there must be a bona fide job opening available to
U.S. workers in order for a labor certification to be approved. Conducting a
test of the U.S. labor market that fails to locate qualified U.S. workers does
not meet DOL requirements for certification if the agency determines that there
is in fact no job available for which the employer is willing to hire a U.S.
worker. The "bona fide job opening" requirement in practice means that an
employer who states that it is unwilling to hire anyone other than the alien for
the job cannot have a labor certification approved under DOL rules. It also
means that when the alien is an investor in, or owner of, the business, or has
significant control over such business decisions as hiring, the DOL will
conclude in most cases that a bona fide job opening is available to U.S.
workers. Finally, it also means that when a position is newly created and the
employer has not hired persons before for the same position, the employer must
prove to the DOL that a real position exists.
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