Labor Certification: What You Need to Know

Labor Certification: What You Need to Know

Labor certification is one of the several channels that foreigners use to get work authorization in the U.S.A. However, it is considerably different from other channels in many key aspects. Here is an overview of what labor certification is all about and the process involved in getting one. 

The Employer’s Concern

Unlike some visas that require the foreigner to apply, it is the employer who is entirely responsible for the application process. This includes filing application forms and liaising with the relevant authorities. 

The first step of applying for labor certification is to prove that there are no suitable workers in the U.S. A suitable worker is one who is qualified for the job and is willing to do it at the standard rates. To this end, the employer must first launch a recruitment campaign and see whether any U.S. workers are interested. He/she must also create a clear and detailed job description including benefits and wages – note that it is not legal to lower wages so as to discourage U.S.-based workers. 

The next step involves submitting the information and relevant documents to the Department of Labor (DOL). However, the application for labor certification should be submitted to the Employment and Training Administration (ETA), a branch of the DOL. The ETA is responsible for verifying the job’s description and determining whether there are adequate U.S. workers suited for the position. If there are not, then the ETA will notify the DOL, which will then give the green light to the U.S. Citizenship and Immigration Services (USCIS) to approve the application. 

Complex but Reliable

Just like visa applications, applying for labor certification is quite complex. Overall, the process takes 7 to 10 months: 3 months for the employer to prepare the required documents and 3-7 months for the ETA, DOL, and USCIS to review the application. Small mistakes can delay the application or make it get rejected, so it is always important to be detailed and accurate especially considering that you cannot make corrections once you file the application. In many cases, it is advisable to rely on services of a professional for efficacy unless one is experienced. 

However, the process is much easier and faster than before. The permanent labor certification program (PERM) is a program of the DOL and USCIS that was formulated to ease the application process. Additionally, the regulatory bodies have streamlined their services by adopting electronic and digital technology, hence making it easier to share information.    

Validity 

The certification has a validity of 180 days after which it has to be renewed. Renewals are less complex to file, but they are rejected if not filed before the application date is due. 

The labor certification can be a stepping stone towards getting permanent residency, but this is usually rare – the process is expensive and can drag on for years. The employee is not obliged to work for the employer who obtained the labor certification on his/her behalf. However, if the employee changes jobs, then he/she should make sure that the new occupation is closely similar to the former one or else the law will disqualify the certification. 

One can also leave the U.S.A. while the labor certification process is pending. However, the fact that you have a labor certification process pending does not guarantee re-entry into the country. As such, you will be required to apply for a relevant visa that will allow you to re-enter into the country. You should seek counsel to make sure that your application goes smoothly.

You Have Been Approved – Now What?

Many people who have their labor certifications approved go a step further in a bid to become permanent residents. The labor certification makes the process easier and improves the chances of getting approved. 

Applying for an employment-based green card also requires the employer’s participation. The employer will be your sponsor, and they will liaise with the relevant authorities on your behalf. He/she is required to provide several documents and applications to prove that you are indeed suitable for residing permanently in the U.S.A.: the documents include:

• The original approved labor certification signed by you and your employer
• Proof that you qualify for the position indicated on the labor certification. This may include education certificates and recommendation letters highlighting your experience
• Proof that your employer is capable of paying you the standard wages for your occupation. This may include tax return forms and annual reports

A translator should be contracted to translate foreign language documents. Additionally, the priority date on your labor certification has to be current depending on the Department of State’s updates – the priority date is the date when the labor certification was filed, and it is usually indicated on the cover page. Application for an employment-based green card is made using form I-140 for those outside the country and form I-485 for those currently residing in the U.S.A.