The ABCs of Immigration - Labor Certifications, Part I
by Greg Siskind
The requirement of a labor
certification – essentially a statement from the Department of Labor that
there are no qualified available US workers willing to fill the position offered
– has been part of US immigration law since 1965.
Before then an immigrant worker could not be excluded unless the Attorney
General issued a statement saying that there was no shortage of US workers and
that admission of the alien workers would harm the position of US workers.
The labor certification applies to all workers in the EB-3 preference
category and most workers in the EB-2 category.
Aliens in the EB-1 preference are exempt from the requirement.
The question answered by the labor certification is whether there are any
“able, willing, qualified, and available” US workers. US workers include citizens, permanent residents, and anyone
authorized to work in the US whose work authorization is not tied to a specific
employer. In most labor
certifications, the qualified US worker need only meet the minimum
qualifications for the position. The
exceptions are for teachers at colleges and universities and aliens of
exceptional ability in the performing arts, in which the US worker must be as
qualified as the alien worker.
This article will discuss the requirements and procedures of the standard labor
certification process. Specialized
labor certification procedures will be discussed next week.
Filing Form ETA 750 with the State Employment Service Agency
Although a labor certification is ultimately approved or denied by the
Department of Labor, the initial filing is with a state employment service
agency, or SESA. The employer must
submit the Department of Labor Application for Alien Employment Certification,
Form ETA 750, Parts A and B. This
form outlines the job offer, the alien’s qualifications, and employer’s the
minimum requirements for the position.
Another part of the ETA 750 encompasses the following eight certifications made
by the employer:
- The
employer has the funds to pay the offered wage;
- The
employer will pay the alien at least the prevailing wage;
- If
the job offers a range of wages based on experience, the bottom of the range
is within five percent of the prevailing wage;
- If
the wage involves bonuses or commissions, the employer will guarantee the
prevailing wage;
- The
employer will be able to put the alien on the payroll as soon as they enter
the US;
- The
job does not involve discrimination on the basis of race, religion, national
origin, age, sex, handicap or citizenship;
- The
position is not available because of a strike, lockout, or other labor
dispute creating a work stoppage;
- The
terms and conditions of the job do not violate Federal, state, or local
laws;
- The
position is open to qualified US workers.
As soon as the labor
certification is filed with the SESA, the employer must provide employees with
notification of the filing. If
there is a union or bargaining representative, notice must be given to it.
If there is no such representative, notice is given by a posting in a
conspicuous place. The posting must
remain visible for at least 10 days. Regardless
of the type of labor certification involved, this notice must be given when the
application is filed.
The SESA must approve this form. Approval
depends both on whether the SESA determines the position is appropriate for a
labor certification, and whether it finds the application incomplete or
otherwise unacceptable. If the
application is not appropriate for a labor certification, it will be returned to
the employer. If the application is
incomplete, the employer has 45 days to submit a corrected application.
Once the labor certification application is satisfactory, the SESA will
supervise a period of recruitment for the position. The SESA will place a job order in its employment security
job bank, and the employer must also advertise for the position, and must direct
applicants to the SESA, which will then refer them to the employer.
Advertisement
The advertising requirements vary among each of the nine Department of Labor
regions across the US. There are,
however, some rules of general applicability, as well as guidelines to follow
that will help avoid an eventual denial of the labor certification application.
Nonprofessional jobs should be advertised in a generally circulated newspaper
for three consecutive days. The
publication should reach the audience most likely to bring the largest number of
responses, and some Department of Labor regions require that one of the days on
which the ad runs be a Sunday.
Professional jobs and those that are highly technical in nature should be
advertised in a professional journal, as should positions requiring a
professional degree. Some regions
will allow advertising for these jobs in a generally circulated newspaper, if
one of the days the ad runs is a Sunday.
If the position has a foreign language requirements, some regions will allow
advertising in an ethnic publication if it is circulated in the area of the job
location. If the ethnic paper is
not published daily, in some cases a single ad will suffice.
All advertising should be located in that part of the publication where it will
most likely be noticed, and should be so worded as to elicit the greatest number
of responses. The ad must describe
the job duties and responsibilities, hours and compensation and the minimum
requirements, but should not reveal the name of the employer.
The ad should include the SESA job number assigned to the position and
should direct applicants to contact the SESA.
Tear sheets of the ads should be submitted.
Decision on the Application
If the recruitment attempts are unsuccessful, the SESA will forward the
application, along with prevailing wage data to the Department of Labor regional
Certifying Officer. The SESA may
include any comments or observations it feels are appropriate, and will make a
recommendation on the approval or denial of the application.
Even if the recommendations of the SESA are followed, the Department of Labor
can still deny the application. Therefore
it is important to be familiar with the requirements and procedures of the
Department of Labor regional office to which the application will be submitted.
Once the application is submitted to the regional office of the Department of
Labor, the decision will be made on the evidence in the record.
The Department of Labor is guided primarily by two concerns – whether
there are available US workers and whether approving the labor certification
would have a negative impact on the working conditions of US workers.
Adverse decisions may be appealed to the Board of Alien Labor
Certification Appeals.
About The Author
Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.
After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM Publishing Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.
Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.
Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.
In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com.
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