OVERVIEW OF THE LABOR CERTIFICATION PROCESS BY WHICH A UNITED STATES EMPLOYER SPONSORS A FOREIGN NATIONAL FOR LAWFUL PERMANENT RESIDENCE (A GREEN CARD) IN THE UNITED STATES: 

The labor certification application is an application for a foreign national/beneficiary to come, or if the individual is already in the United States in valid nonimmigrant visa status to remain, in the United States permanently.  In 1965, Congress prescribed the labor certification process by amending the Immigration and Nationality Act with provisions aimed at safeguarding the U.S. labor market.   The labor certification process prohibits certain foreign national workers from entering the United States unless the DOL certifies that there is a shortage of U.S. workers or lawful permanent resident workers to perform the type of labor that the foreign national is seeking to provide to the applicant/employer/sponsor, and that the foreign national’s employment will not adversely affect the wages and working conditions of U.S. and lawful permanent resident workers.

The labor certification application process is commenced when the applicant/employer/sponsor files the Form ETA 750, Parts A and B, with the Local State Employment Services Office in the geographic area of intended employment. Part A of the ETA 750 is entitled the “Offer of Employment” and must include the specific education, training and experience that the employer requires for the position offered.  It must also list any special requirements and that the position to be filled is permanent.  Part A must also include additional detailed information.  Part B of the ETA 750 is entitled the “Statement of Qualifications” and must include, among other things, the names and addresses of colleges and universities where the foreign national received his/her education and a list of the alien’s special qualifications and skills.  Generally, the application should be accompanied by evidence that the alien possesses the referenced qualifications such as licenses, diplomas, certificates, transcripts and other documents.   In addition, the foreign national/beneficiary must list all work experience for the past several years.

In the State of New Jersey, the labor certification application is filed with the State of New Jersey, Department of Labor, Alien Labor Certification Unit (“ALC”) which is located in Trenton. This office completes an initial processing procedure and then refers the application to the Regional Office of the Employment and Training Administration.   Upon receipt of the ETA 750, the local ALC will date-stamp the application (assign a priority date) and review it for completeness. If the ALC finds the application incomplete, the application is returned to the applicant/employer/sponsor with instructions to complete and return it. The applicant/employer/sponsor must return an incomplete application with modifications within a designated period of time in order to preserve the original priority date.

If the ALC finds the application inappropriate, it will return the application with an explanation of its decision. The ALC may find an application inappropriate for many reasons. Several of these reasons are provided in the Department of Labor Technical Assistance Guide (“TAG”).  The ALC evaluates the reasonableness of the education, training and experience requirements that the applicant/employer/sponsor designates in the light of current employment practices. The ALC or the DOL may regard excessive experiential requirements as the applicant/employer/sponsor’s effort to tailor the position to the qualifications of a particular applicant and may reject such requirements as unreasonable.

In general, the requirements for a specific position should not exceed those listed in the Dictionary of Occupational Titles (“DOT”).  DOL publishes the DOT which contains a comprehensive directory of job titles and occupational qualifications. Each job has a code, usually nine digits separated into three groups of three by decimal points (e.g. 001.132.212).  In addition, each job is assigned a Specific Vocational Preparation (“SVP”) number.   These code numbers range from one (1) to nine (9) and represent a scale of the combination of education, training and experience appropriate for the job as it has been delineated in the DOT.

Generally however, SVP codes do not conclusively determine the appropriate combination of experience, education and training and the applicant/employer/sponsor may require more or different experience, education and training for a position (since the job offered does not always specifically match the DOT description).  However, applicant/employer/sponsors requiring more experience, education and training may have to demonstrate why the added qualifications are necessary.   Additionally, requirements that ALC and/or the DOL deem to be “unduly restrictive” may be rejected unless the employer can justify them by proving a “business necessity.” 

As the labor certification application travels through the ALC, the applicant/employer/sponsor may be notified of any required modifications that may have to be made to the application. After all corrections are made, the applicant/employer/sponsor is  instructed to place a job advertisement in a newspaper of general circulation for at least three consecutive days, or to place the job advertisement in a professional or cultural publication, as appropriate, for the occupation. ALC staff may also place a job order with the local office in the area of intended employment in an effort to recruit U.S. workers.  The applicant/employer/ sponsor will also be directed to post the job offer for ten (10) consecutive business days in two conspicuous locations at the worksite to afford other employees the opportunity to apply for the job. The applicant/employer/sponsor is required to interview all qualified U.S. and lawful permanent resident applicants, and if a qualified individual is available, to hire that applicant.

The applicant/employer/sponsor can only reject applicants for lawful, job-related reasons.  In addition to the other items in the ETA 750, Part A, the ALC, working in conjunction with the Division of the State Labor Department, examines the prevailing wage for the occupation and compares that wage to the wage being offered in the application.  In general, the wages paid to foreign workers must be at least the higher of the actual wage rate paid to all other workers with similar experience and qualifications for the specific employment in question or the prevailing wage rate for the occupational classification in the area of employment.  Essentially, the applicant/employer/sponsor represents both to the ALC and to the DOL that the wage declared on the labor certification application will be paid to the beneficiary when he/she receives work authorization, and the beneficiary assumes the position offered in the labor certification application.   

Following receipt of the approved labor certification from the DOL, the petitioner/employer/sponsor must file the approved labor certification with the INS.  The petitioner/employer/sponsor files the following documents with the INS: (1) G-28, Notice of Appearance of Attorney or Representative (if the petitioner/employer/sponsor and beneficiary are represented by legal counsel); and (2) Form I-140, Petition for an Alien Worker; and (3) supporting documentation to demonstrate that the position is still being offered to the beneficiary in accordance with the specifications of the originally filed labor certification application.  In this petition, the INS generally examines the financial stability of the petitioner/employer/sponsor to determine whether it can pay the designated wage to the prospective beneficiary.

Assuming approval by the INS of the I-140 petition, the beneficiary may apply for adjustment of status to lawful permanent residence (the final application for the green card).  It is only in this final application portion of the process that the representations are generally those of the beneficiary alone.  The representations of the employer/sponsor are an integral aspect of the application/petition process until the beneficiary applies for adjustment of status to lawful permanent residence.  However, the employer may, be required to demonstrate that the beneficiary presently works in the position offered or that the employer will hire the beneficiary in the position offered.

While it is generally known that the labor certification process may take a significant amount of time from the filing of the application to the approval, the U.S. Department of Labor has recently revisited use of the “Reduction-in-Recruitment” (“RIR”) process as a means of accelerating the processing of a labor certification application.  The RIR process contemplates that the employer has undertaken (what the DOL has termed) “real world” recruitment efforts during the six (6) month period immediately preceding the filing of the labor certification application.  The RIR process is an invaluable tool when a qualifying foreign national requires his/her status to be adjusted prior to the expiration of their nonimmigrant visa.