The Application for Alien Labor Certification
Employment-based immigration to the U.S. accounts for a substantial number of applications for permanent residency. With the exception of Priority Workers or those who can show their work to be in the national interest of the U.S., sponsorship of a foreign national for residency requires an offer of permanent employment, with an approved Application for Alien Labor Certification, and an Application for an Immigrant Visa approved by the INS.
Obtaining residency through a Labor Certification is complicated and lengthy process which can take 3 or more years to complete. It is a three step process involving:
- an application by the employer to the Department of Labor (DOL);
- a petition by the employer on behalf of the employee to the U.S. Immigration and Naturalization Service (INS);
- an application for residency to the INS from the foreign national on his/her own behalf based upon the approval of the employer's applications.
Stage One: The Alien Labor Certification
- The employer submits an Application for Alien Labor Certification to the U.S. Department of Labor (DOL) and is required to demonstrate to the satisfaction of the DOL that there are no "U.S. workers" qualified, available, and willing to take the position as offered.
- The employer must advertise the position in a professional journal or a Sunday edition or a widely-read regional newspaper.
- The advertisement must contain a complete description of the position vacancy including job related responsibilities and duties, salary offered, minimum acceptable qualifications. The employer is required to meet prevailing wage guidelines for the position.
- The employer must interview all U.S. candidates who meet the minimum requirements for the position as advertised.
- The employer must submit a Recruitment Report to the DOL after
all applications have been received and qualified applicants interviewed.
This report must contain an explanation of the following:
- where and when the job was advertised
- the number of applicants for the position
- how the final candidates were selected
- whether or not each applicant was contacted and interviewed
- the outcome of those interviews including
- why each applicant did not meet the minimum requirements
- why the foreign national was the most qualified for the position
- The employer must provide evidence to show that the foreign national was found to be more qualified for the position than any of the other candidates and that s/he will not displace a U.S. worker.
- If the foreign employee is already in the position being advertised, DOL regulations do not permit him/her to use experience gained on the job to satisfy job requirements.
The DOL will review the "recruitment report" and accompanying documentation and, if satisfied that the employer has complied with all of the requirements, it will be Certified. However, the District Office has the right to deny the application, request more information, require additional interviews, or request an additional period of advertisement if it feels that the employer has not fulfilled its obligations under the law or proved that there were no "qualified U.S. workers" available for the position. Current processing time for Applications for Alien Labor Certification average 6 to 9 months.
Stage Two: The INS Petition
Following approval of the Labor Certification, the employer must file an Immigrant Petition for an Alien Worker with the U.S. Immigration and Naturalization Service. This petition, known as an I-140, and is filed by the employer on behalf of the employee and must include the Certified Labor Application, a letter offering the position to the employee on a permanent basis, and other documentation. INS adjudication of Form I-40 is approximately six months.
Stage Three: The Alien's Application for Permanent Residency
After INS has approved the employer's I-140 petition, the foreign national will undertake the third and last stage of the residency process which is to file his or her own application for permanent residency. The employee's spouse and any unmarried children under the age of 21 are also permitted to apply for residency. Current INS adjudication time for this stage of the process is approximately 24 months.
Reduction in Recruitment Processing for Labor Certifications
In order to increase efficiency in the labor certification process employers are permitted, in some circumstances, to bypass some of the bureaucratic processes of labor certification.
These procedures, known as Reduction in Recruitment, permit an employer to submit the results of a job search which resulted in the offer of a position to a foreign national IF the job search took place no more than six months prior to the filing of the labor certification application.
Regional Labor Departments are encouraged by DOL headquarters to accept reduction in recruitment applications for certain categories of labor certifications such as;
- occupations for which there is little or no availability of US workers;
- positions which have no restrictive requirements;
- which meet prevailing wage requirements;
- for which the employer can show adequate recruitment efforts through sources normal to the occupation and industry within the previous six months.
Such cases shall be submitted to the local Department of Employment and Training complete with all required documentation. The local office will review the application and screen the resumes of US workers against the employer's job requirements. If the local office is satisfied with the application submitted, it will forward the application to the Regional Certifying Officer with a recommendation for approval. The Regional Office will undertake limited review of these applications and, barring deficiencies, will expedite the approval of the Alien Labor Application.
Applications accepted for Reduction in Recruitment processing are adjudicated at a more rapid pace than the normal Alien Labor Certification. Turn around time for these applications is approximately 6 months.
