LABOR CERTIFICATION

A "labor certification" is a certification by the U.S. Department of labor that a shortage of qualified U.S. workers exists to fill the position held by the sponsored alien employee, and that the company is paying or will pay the immigrant employee the "prevailing wage."

Requirements

A U.S. employer sponsoring immigrant is required to obtain

• verification that the company is paying or will pay the immigrant the prevailing wage;
• verification that the employment will not have an adverse efffect on the wages and working conditions of similarly situated U.S. workers; and
• verification from the Secretary of the Department of Labor that there are insufficient available, qualified and willing U.S. workers to fill the position.

The employer is required, through an individual job offer, to test the labor market by engaging in recruitment efforts. For a professional position the employer must post a notice of thejob opporutnity in-house, place a 30 day job order with the state workforce agency (SWA), post notice with any/all in-house media typically used by the employer in filing job openings, run an advertisement in two Sunday editions of a newspaper of general circulation, and select and fulfill three additional forms of recruitment from a list of 10 possibilities.

In cases selected for audit, the employer will be required to submit supporting documentation establishing compliance with each of the labor certification requirements - including additional reasonable requirements imposed by the DOL certifying officer.

• A U.S. worker who does not meet all of the requirements of the job cannot be rejected (and, thus, a certification cannot be issued), if that U.S. worker could receive job training or if he or she is able to perform the job duties in a normally acceptable manner given his or her background.

Once issued, the certification is valid indefinitely as long as three things remain unchanged: the aline continues to work (1) for the same employer; (2) at the same location; and (3) doing the same job. Therefore, any promotions or significant changes in job duties or location before legal permanent residence is obtained will probably invalidate the labor certification, thus making the applicant ineligible for permanent residence.

Schedule A Positions

The Department of Labor (DOL) has determined that schedule A positions do not have an adverse effect on the wages and working conditions of U.S. workers.

• Schedule A Group I - physical therapists and nurses : employer need only show that the applicant meets the criteria of the position including licensure or certification.
• Schedule A Group II - Persons of exceptional ability in the sciences and arts.