OBTAINING LABOR CERTIFICATION
1. What kind of work qualifies for a permanent labor certification?
*A full-time and permanent job for which the employer is ready to hire an available qualified U.S. worker;
*A job where an employer-employee relationship exists, evidenced by employer's ability to hire, supervise and provide payment to the employee;
*A job in which generally, the job duties are be consistent with those defined in the Dictionary of Occupational Titles and normally required for the job in the U.S.;
*A job where the hiring requirements conform to the Department of Labor's (DOL) data for usual experience and education standards common to the occupation and the industry;
*A job that is not tailored to the qualifications of the foreign worker; and
*A job that does not include requirements for a language other than English, without written justification.
2. What is the filing procedure?
Employer files an application on behalf of the foreign worker;
*The application is filed on Form ETA 750, Parts A and B with the foreign labor certification unit of the State Workforce Agency (SWA).
3. What does the State Workforce Agency (SWA) do with the filed foreign labor certification application?
The SWA reviews the description of job duties and evaluates the employer's stated minimum requirements for the job. Then it will determine the prevailing rate of pay and give the employer a chance to amend wages and/or requirements that do not comply with labor certification.
4. What will I, as the employer have to do once the SWA reviews and evaluates the application?
Once the application is complete, the SWA will oversee the employer's recruitment of U.S. workers, by placing a job order in the statewide job bank system or equivalent. The employer must post an announcement of the job opportunity at its place of business along with a notice of the filing of an foreign labor certification application. The employer must also place an advertisement by the employer in whichever publication is determined by the SWA to be most appropriate to the occupation.
The SWA will screen resumes from job applicants and forwards apparently qualified resumes to the employer. Then the employer must interview and evaluate the applicants, and file a report with the SWA giving the lawful, job-related reasons why each rejected applicant is not qualified for the position. A recruitment report must be furnished to the SWA as evidence of recruitment advertising and in-house posted notice.
5. What does the SWA do after the employer files a recruitment report?
The SWA analyzes the employer's recruitment efforts and the employer's evaluation of the U.S. applicants, then advises of any deficiencies to be corrected and assembles the documentation to be forwarded to the regional office of the U.S. DOL.
6. What does the DOL regional certifying officer do with the application and supporting documentation once the SWA forwards it to the region?
Once the application and supporting documentation is forwarded to the regional office, the region will analyze the employer's application and either grant certification or issues a Notice of Findings (NOF – intent to deny). The decision is based on whether the employer has met the requirements of federal regulations governing the foreign labor certification program.
7. Where is the appropriate place to file a labor certification application involving a foreign worker who will be employed at various unanticipated work sites?
Applications that require the foreign worker to work at several locations in the U.S. should be filed with the SWA having jurisdiction over the area in which the employer's main office or headquarters is located.
8. Will I be notified once the region receives the file?
Generally, the SWA will notify the employer when the application and all associated documents have been forwarded to the certifying officer in the regional office.
9. How can I check the status of a permanent labor certification application?
If you have not been informed by the SWA where the application was submitted that the case has been transferred to the DOL regional office, you should contact that SWA for the status. If the SWA has informed you that the case has been transferred to the DOL regional office, you should contact that regional office. Each regional office has a telephone information retrieval system that allows interested parties to receive an automated response to the status of a case by using either the case number or the employer telephone number.
10. How long does the process take for a permanent labor certification?
The process to obtain an employment based permanent labor certification can sometimes take up to several years with the state agency and the DOL regional office (the longer processing times occur in states with the largest influx of immigrants, such as New York and Texas). Some cases are extremely complex and require additional evaluation. To be of assistance, we have provided on our website the current processing times in the DOL regions and states.
11. Can a permanent labor certification application be amended by the DOL after certification is granted?
Only in cases of DOL error will changes made be to a labor certification after approval. All other post-certification amendments must be submitted to the BCIS when an BCIS Form I-140 visa petition is filed.
12. What is the procedure for obtaining a duplicate copy of an approved permanent labor certification application?
The employer should request in writing that the BCIS ask the DOL to provide a copy of a permanent labor certification if it has been lost. It is the DOL and BCIS policy not to provide copies to private individuals.
13. Are there any shortcuts to filing a permanent labor certification application?
If prior unsuccessful recruitment efforts have been conducted within the last six months, a letter requesting “Reduction in Recruitment” (RIR) may be submitted with the application at the time of filing with the SWA. These applications are given expedited processing if they meet specific conditions:
a. The employer must provide evidence of a pattern of normal industry recruitment efforts conducted in the six months preceding the application filing date. A single three-day ad does not constitute an acceptable pattern; and
b. The application must list only the minimum experience requirements and standard requirements for training and education. The job duties/responsibilities on the application must not exceed those considered normal for the occupation.
