Employment and Training Administration (DOL) issues labor certifications. This is a procedure by which the DOL determines that there are insufficient US workers who are able, willing, qualified, and available to perform the job. The DOL must also find that the terms of the employment will not have an adverse effect on the wages and working conditions of US workers who are employed in similar positions.
Department of Labor Rules
The DOL has specific rules that govern the labor certification process, including a recruitment process and standards that are different from those companies normally use.
The DOL’s PERM process allows the application to be filed via the Web. The job’s minimum requirements (i.e., education, training, and experience) are stated on the application, along with any necessary and reasonable special requirements. The job duties and requirements must not be unduly restrictive. They must be consistent with those listed in the Standard Occupational Classification Manual (SOC), Dictionary of Occupational Titles (DOT), and other sources determined by the DOL to reference normal requirements for the job in the US.
The foreign national must already have the required education, work experience, and special qualifications listed on the application. The DOL rules usually prohibit the use of experience gained with the sponsoring company to qualify for the job. Under the PERM system, on-the-job work experience gained with the sponsoring employer may qualify if it was in a different position with at least 50% dissimilar job duties.
The DOL rules require that an internal notice of the position opening containing the job title, duties, minimum requirements, and salary be posted at the worksite.
The employer must also place advertisements in a regional newspaper as well as additional recruitment for professional jobs. Each resume received in response to the ads must be evaluated to ascertain whether the applicant meets the minimum requirements on the labor certification application, not whether the applicant is the best qualified candidate. All responses to the advertisements must be retained in the company’s files. Those applicants appearing to meet the requirements must be interviewed. Detailed notes regarding the interviews and the applicants’ qualifications or lack of qualifications must be taken and kept.
Note: A labor certification is “job and location specific.” If the foreign national is moved from a job in San Jose, described in the application, to a job in Sacramento after the labor certification is issued but before permanent resident status is granted, the labor certification cannot be used for that foreign national. One hundred eighty (180) days after an adjustment of status to permanent resident application (Form I-485) is filed, the applicant may be able to transfer the labor certification and permanent residence application for work in a similar job at another location or for a different employer.
The Labor Certification Process (step-by-step)
Following are the steps for obtaining permanent resident status by labor certification:
Counsel analyzes the job and with the employer and determines the minimum qualifications for the position, and any special requirements in accordance with DOL criteria and the employment-based category (i.e., EB-2 or 3).
Proof of applicant’s education and work history is gathered to ensure qualification for the job. Equivalency evaluation of foreign degrees is required.
Counsel evaluates and discusses the prevailing wage with the employer.
Salary clearance is obtained from the DOL.
Job notice is posted at company.
Counsel assists with and places ads and other recruitment, and advises the employer about the DOL rules as the employer tests the labor market to determine whether there are any qualified applicants for the position. If qualified US applicants able, willing, and available to perform the job are found, the labor certification must be stopped.
A recruitment report and back-up documents are assembled and prepared for the file.
Application forms are finalized. Application is filed with the DOL.
Counsel responds to any DOL questions.
DOL grants the labor certification, or issues a “Notice of Audit” requesting information on why the application should not be denied, or requires more recruitment, or denies the application.
Lawler & Lawler prepares an immigrant visa petition, Form I-140, based on the approved labor certification, and sends it to USCIS with proof that the employer can pay the salary and proof of the employee’s qualifications. The I-140 determines the EB category.
Concurrently with, or after approval of, the I-140, one may proceed to the final stage, provided one’s “priority date” is current on the State Department’s immigrant visa bulletin. One’s priority date must be current on the visa bulletin for an immigrant visa number to be available in order to proceed to the final stage of the case.
Counsel files adjustment of status to permanent resident application, Form I-485, and supporting documents with request for a work permit (EAD) and travel permit (Advance Parole). USCIS may decide it with no interview. After it is approved, a green card is issued.
Step 13 (Alternative):
Foreign national applies for immigrant visa at a US consulate overseas. Some in the US may choose this option, as it may be faster than adjustment of status or may be advantageous for other strategic reasons. After a person is admitted in the US with a permanent resident stamp, a green card is issued.