Posts Tagged ‘Labor certification’

Labor Certification and the Ten Certifications

Wednesday, September 4th, 2019 by W. Scott Railton

Labor certification is the process by which an employer recruits for a position, to determine if there are any available, willing, minimally qualified persons for the position. Fundamentally, the Department of Labor’s labor certification irotects the U.S. workforce first. It then secondly enables U.S. employers to petition for foreign workers, where no U.S. workers are available.

There are some occupations that the Department of Labor has long-determined there is a shortage of workers for, such as professional nurses and physical therapists. For these occupations, employers can forego most of the recruitment process. There are other occupations and areas where it is widely known that there is a shortage of available workers, such as is the case with physicians who are willing to working in a designated health professional shortage area.

Sometimes, a position is hard to fill because it requires very specific training or a large measure of industry-specific experience. The U.S. labor force and the employment needs to the U.S. are diverse, encompassing many factors.

The labor certification process is working well for employers. It takes an investment in time and money to pursue a labor certification and permanent residence for an employee, but this is one area of immigration where processing times are relatively good.

Each employer has to make ten attestations with a labor certification application. These attestations capture much of what is required of employers and the factors that need to be considered in pursuing an application. Here they are:

By virtue of my signature below, I HEREBY CERTIFY the following conditions of employment:

1. The offered wage equals or exceeds the prevailing wage and I will pay at least the prevailing wage.

2. The wage is not based on commissions, bonuses or other incentives, unless I guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage.

3. I have enough funds available to pay the wage or salary offered the alien.

4. I will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance int o the United States.

5. The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship.

6. The job opportunity is not: a. Vacant because the former occupant is on strike or is being locked out in the course of a labor dispute involving a work stoppage; or b. At issue in a labor dispute involving a work stoppage.

7. The job opportunity’s terms, conditions, and occupational environment are not contrary to Federal, state or local law.

8. The job opportunity has been and is clearly open to any U.S. worker.

9. The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons.

10.The job opportunity is for full-time, permanent employment for an employer other than the alien.

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Labor Certification and Permanent Residence

Wednesday, July 17th, 2019 by W. Scott Railton

Immigration is very challenging these days, for numerous reasons. One thing that seems to be working fairly well, with surprisingly favorable timelines, is the Department of Labor’s labor certification system. We are seeing labor certifications adjudicated in a matter of months.  With a labor certification approval, an employer can sponsor an individual for permanent residence. If the visa category is current, which is often the case, permanent residence can be procured in less than a year in some cases. While not overnight, that is relatively fast these days.

The labor certification process requires that the employer test the U.S. labor market to see if there is a minimally qualified, willing, and available U.S. worker for the position.  The recruitment process is largely mandated by regulation, typically involving two Sunday advertisements in a newspaper of general circulation, a state workforce posting for 30 days, a worksite posting, and three other options selected from a list of ten alternatives.  The process is highly regulated, and is fundamentally designed to protect the U.S. labor market. If a minimally qualified worker is identified through recruitment, and is willing and available to take the position, the labor certification process cannot go forward.  However, employers willing to consider this process usually know that this is unlikely, or they wouldn’t be considering this path in the first place.

The whole recruitment process can take three to five months.  These days, the timing is largely dependent on how fast the Department of Labor can provide a prevailing wage determination. (Employers must agree to pay at least the going rate for the position–another labor market protection).  Once filed, the labor certification may be adjudicated in two to three months.  If approved, the employer can then file with the Department of Homeland Security to sponsor the alien worker, and take advantage of the premium processing 15 day adjudication timeline. The final step in the process to green card will either be an adjustment of status application or a consular processing appointment.  Adjustments of status can take over a year right now, but it really varies on location.  Consular processing appointments vary too, but some are taking less than six months.

The labor certification route is something to be considered, for valuable noncitizen employees.  For example, this might be a good path for a STEM employee on optional practical training, where the H-1B lottery has not worked out.  It is also an alternative to some merits-based approaches to permanent residence, which are frequently challenged these days. I have been greatly impressed by how well labor certification works for employers these days, in some cases. It is no secret that there are many sectors experiencing labor shortages. The labor certification process is meant to assist employers when that is the case, while still protecting the U.S. labor market.


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H-1Bs and Labor Certifications Delayed By Government Shutdown

Wednesday, October 2nd, 2013 by W. Scott Railton

On October 1st, the U.S. Government went into shutdown due to the inability of Congress to agree on a budget. Nonessential employees are being furloughed until the matter is resolved. This is front page news in the U.S., and everyone hopes the disputes are resolved as soon as possible.

In the meantime, here’s a quick summary of how the shutdown affects immigration petitioners:

1. The Department of Labor’s Office of Foreign Labor Certification (OFLC) will not be accepting or processing applications. Specifically, this means labor condition applications, which are a required element of H-1B petitions, labor certifications, and prevailing wage determinations, are all on hold. This seems to be the most immediate impact of the shutdown for immigration petitioners, as this development could skew timelines, particularly related to H-1B renewals and the need to timely file a labor certification.

Here’s what the DOL says:

OFLC functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

2. All USCIS offices are open and applications continue to process, at least for now. USCIS handles all benefits petitions, such as naturalization applications, all work authorization types, and permanent resident applications.  The office continues to be open because activities are largely funded by fees paid by applicants.

3. By and large, U.S. Customs and Border Protection continues to operate. All ports of entry are open, and so far there are no exceptional delays. The Admissibility Review Office, which adjudicates U.S. waivers, remains open and applications will continue to be adjudicated. The CBP website will not be updated, and approximately 6000 CBP workers will be furloughed.

4. The Department of State will continue operations and visa adjudications as routine for now, but the agency is monitoring the possible impact of the shutdown closely.  Now, in 2011, when the government was facing a shutdown, the Department of State said that only life and death circumstances would justify visa processing.  The more recent statement is tempered, clearly, but we’re only in Day 2 of the shutdown, as of this writing.

5. The Executive Office of Immigration Review (Immigration Courts) are implementing shutdown plans, and furloughs will occur for non-essential personnel. The detainee docket is considered an essential function and therefore will continue to operate.

6. U.S. Immigration and Customs Enforcement (ICE) operations will continue in regards to detention and enforcement operations.

7. The SEVIS system for students and exchange visitors will continue to operate, due to being a fee-funded program.

Let’s hope this gets resolved sooner than later. The longer the shutdown, the more likely other agencies and petition types will be impacted.

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