General Overview of the Labor Certification Process

The labor certification process is in place to ensure that for a particular employment based 2nd category or employment based 3rd category job, there are not sufficient U.S. workers able, willing, available and qualified in the market. The labor certification process is therefore a testing mechanism of the U.S. labor market to ensure that U.S. jobs are not being taken by a foreign applicant and that the applicant and position is not adversely affecting wages for a particular job in the U.S.

The Labor Certification process itself can take months and is very complex. As a brief overview, the Petitioner must satisfy very specific advertising requirements inclining advertising in two local Sunday newspapers as well as at least three additional forms of advertising (for professional positions, not always required in EB-3 cases) which the Petitioner can choose from a list.

Here is a sampling of some advertising options apart from the Sunday newspaper ads:

• Local and ethnic newspapers;
• Job fairs;
• Employer's website;
• Job search website other than the employer's
• Trade or professional organizations;
• Private employment firms;
• Radio and television advertisements

Note that the advertisements must include very specific information and additionally must all be done within a very specific period of time. All recruitment must take place within 30 and 180 days before filing of the Labor Certification. Other requirements also exist, such as requiring the posting of a job notice with the State Workforce Agency in the state where the Petitioning Company is located.

In addition to such advertising requirements, it is also necessary in EB-2 and also in EB-3 cases for the Petitioning company to attest to the fact that they will pay the applicant worker at least the ‘prevailing wage' for the particular job.

As you can imagine, for certain professions, an advertisement for a job opening is likely to receive responses from persons seeking employment. Accordingly, the Labor Certification recruitment process must be documented via a recruitment report. The recruitment report needs to explain who was interviewed as a result of such recruitment, if they are deemed not to qualify for the position then details as to why that is, when and where they were interviewed, and so forth. Of course persons applying for jobs may only be turned away for lawful reasons.

Note that this is merely general labor certification information as the process itself is very complex and case specific consideration and discussion with an immigration professional is needed.