A “labor certification” is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill your job and that you will be paid the “prevailing wage.” One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. Because this factor is so critical, we spend a significant amount of time obtaining and digesting information and then drafting the appropriate paperwork. It is extremely important that we correctly describe the minimum requirements for the job as well as explain the reasons why these requirements are necessary. The necessary papers will be drafted by our office based on information we obtain from your employer regarding title, salary, job description, and minimum job requirements.
In 2005, the Department of Labor drastically changed the way it processes labor certification cases. The primary difference between the new process (referred to as “PERM”) and the old process is how recruitment-related documentation is handled. Previously, supporting documentation such as newspaper ads and other recruitment efforts, justification of the job requirements, prevailing wage determinations, etc., were submitted when the labor certification application was filed. Under PERM, while the same documentation must be prepared or assembled, it is kept by the employer and only submitted if and when requested by the Department of Labor. The employer is required to retain this documentation for a period of five years.
Under the previous regulations, there were two types of labor certifications: Reduction in Recruitment (RIR) (also known as “fast-track,” since these types of cases were given priority handling), and traditional or non–Reduction in Recruitment (non–RIR) cases. These two classifications have been done away with. However, occupations are now classified as “professional” or “nonprofessional” and each classification has different recruitment requirements. Both classifications require two Sunday newspaper ads and a 30-day job posting with the State Workforce Agency (SWA). For professional positions, the employer must comply with at least three out of 10 listed steps: (1) Job fairs; (2) Employer’s website; (3) Job search website other than the employer’s; (4) On-campus recruiting; (5) Trade or professional organizations; (6) Private employment firms; (7) Employee referral program with incentives; (8) Campus placement offices; (9) Local and ethnic newspapers; and (10) Radio or television advertisements. If the occupation is classified as “professional” as a “profession” and the employer fails to do these additional steps, the labor certification application will be denied.
Please note: Because the labor certification is really an application by the employer, our office will need your employer’s permission to act as attorney of record on its behalf before the Department of Labor. However, we will not make any representation on behalf of the company without first clearing it with them. Second, applying for a labor certification does not bind the employer legally. The employer remains free to dismiss you or take other personnel action with regard to you, as it would with regard to any other employee. Finally, the labor certification application may be withdrawn by the employer at any time.
Conversely, the application does not bind you to the employer either. However, it is important, before expending great amounts of time and effort that you are sure that there is relative job stability and that you will be employed by the employer upon completion of “green card” processing.