Alien Labor Certification

Green card holders are non-U.S. citizens legally authorized to permanently live and work in the United States. There are various ways through which non-citizens can achieve green card status. The bases for receiving a green card include family connections, political asylum, adoption, and employment. Employment-based green cards are issued when the applicant has a permanent employment opportunity in the U.S.

Alien labor certification is part of the sponsorship process for employers who wish to hire foreign workers permanently. The employer may assist the foreign worker in obtaining a green card based on employment.

Most employers who apply for certification attempt to petition alien workers who already work for the same company but in a different branch overseas.

Alien labor certification is processed through the U.S. Secretary of Labor. Obtaining labor certification can involve a lengthy process wherein the employer must prove a shortage of qualified U.S. workers to fill the position.

What is Alien Labor Certification?

Most aliens who apply for an employment-based green card are already working for the company that will sponsor their green card application, typically with H1 or L1 visas. The difficulty in sponsoring employees for green cards is due to the lengthy process where employers must show there is a shortage of eligible employees in the United States for that type of position. Determining whether there is such a worker shortage is called PERM Labor Certification.

Labor certification is the first step in obtaining a green card on an employment basis. The certification application is submitted to the Department of Labor (“DOL”). Employers will have to advertise and interview U.S. citizens, be unable to find a suitable candidate, and demonstrate this inability to the DOL before hiring a foreign citizen through green card sponsorship.

What is the Process for Obtaining Alien Labor Certification?

There are several steps that the employer must complete before alien labor certification is issued, including:

• Application: The employer must first apply with a state employment agency. The agency may differ by state. The application will usually include a job description, job qualifications, and experience required. The employer must state how the foreign candidate will fulfill the job qualifications.
• Recruitment: After reviewing the application, the employer must then complete a recruiting process. Labor certification will only be issued if the job cannot be filled by U.S. citizen workers. All candidates must be interviewed and given a fair chance for hiring
• Approval: If a U.S. citizen qualified for the job cannot be found, the state agency will approve the application. If it is determined that the recruiting process was not conducted in good faith, or if U.S. citizen candidates were not seriously considered, the application may be denied
• Post-Approval: After approval, the employer can file with state entities such as the Department of Labor for further verification. Employers can also begin applying for visa petitions to obtain a green card for the foreign worker

The process for obtaining an Alien Labor Certification can be lengthy due to the recruiting requirements involved. The Department of Labor is strict when it comes to granting certification to foreign workers before giving U.S. workers a chance to be hired, especially during times of high unemployment.

Do All Classes of Alien Employees Require Labor Certification?

Some classes of alien workers are exempt from labor certification requirements. An employer does not need to go through the certification process listed above when petitioning these types of employees:

• Aliens with Extraordinary Ability in the Arts, Sciences, Business, Athletics, or Education: This includes outstanding executives, managers, researchers, or professors. These employees fall under the visa category of “Employment First Preference.”
• Professionals with Advanced Degrees (Employment Second Preference): may also include workers with exceptional abilities in the Arts, Sciences, etc.
• Skilled Workers and Professionals with Baccalaureate Degrees, other workers (Employment Third Preference)
• “Special Immigrants” such as religious workers and pastors (Employment Fourth Preference)
• Immigrant Investors: persons who are willing to invest $500K – $1 million in the U.S. and create at least ten job positions

If the alien employee does not fall into any of these preference categories, then the employer must go through the alien labor certification process.

How Do Employers Apply with the State?

File an application with your state’s Employment Security Agency (SESA) or State Workforce Agency (SWA). Depending on your state, the name of the agency will differ. The employer must file a Department of Labor Form ETA-750. This form will include information in the job description and the qualifications and experience necessary to perform the job. The form will describe how the prospective immigrant candidate meets these qualifications.

The SWA will review and approve your submitted qualifications. Part of this process will include a prevailing wage determination, which includes the state investigating the normal rate for equivalent jobs in the U.S. Once this determination is made, the employer will have to pay 100 percent of that rate to the employee.

What is the Recruiting Process?

After the state agency reviews your application and makes a wage determination, you must conduct a recruiting process in an attempt to find U.S. citizens who are able to do the listed job. This recruiting process is monitored by the SWA per DOL regulations. Employers must publicize the job by submitting the job opening on statewide databases and publications such as newspapers and employment bulletins. Employers must interview anyone who meets the listed qualifications.

After the appropriate recruiting period, employers will submit the results to the SWA. The SWA will closely examine the results to make sure that all appropriate advertisements ran, all qualifying candidates were interviewed, and if appropriate, job offers were made. The DOL is serious about hiring U.S. citizens before prospective immigrants, particularly in times of high unemployment. The SWA will evaluate the recruiting process and pass its report on to the DOL.

Results and DOL Approval

If you cannot find a U.S. citizen who is qualified and willing to do the job and the state agency has approved your recruiting process, you can submit the labor certification application to the DOL. The application requires completing DOL Form ETA-9089. If the DOL determines that the recruiting process was unfair or not done in good faith (e.g., you did not seriously consider a U.S. citizen that was qualified for the position), the DOL may disqualify the labor certification application.

What is the Post Approval Process?

After a labor certification is approved, the employer files a visa petition via USCIS Form I-140. After the petition is approved, the prospective immigrant employee applies for their green card.

Do I Need a Lawyer for Alien Labor Certification?

If you are seeking to petition a foreign employee for work in the U.S., you may wish to contact an immigration lawyer for advice and assistance. As you can see, the alien labor certification process can be both complex and time-consuming. Your attorney can assist you throughout the process to make sure that you meet the necessary requirements for certification.

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