This article is a chapter excerpted from the "Massachusetts Immigration Practice Manual” published by Mass. Continuing Legal Ed.,  http://www.mcle.org/.

 

Editor’s Note: This article is based on current labor certification regulations - upcoming PERM regulations will change the labor certification process and the specific rules mentioned in this article may no longer apply.

§ 1           Introduction

The first step in most employment-based permanent residence cases is the Application for Alien Employment Certification (also known as “Labor Certification”).  In this procedure, the employer submits an application detailing an offer of employment in a permanent position to the alien beneficiary, and seeks a determination from the U.S. Department of Labor that (1) based on a reasonable test of the labor market, there are not sufficient U.S. workers who are able, willing, qualified and available for the job, and (2) the employment of the alien will not adversely affect the wages and working conditions of U.S. workers similarly employed.[1]   As part of the process, the employer is required to advertise the job, respond to applications from U.S. workers, and attest that all were rejected for lawful job-related reasons.  Obtaining the grant of Labor Certification is a prerequisite to filing the Immigrant Petition for Alien Worker (form I-140).[2]  “U.S. workers” are U.S. citizens or nationals, permanent residents, refugees and asylees.[3] 

Labor Certification can be lengthy, complex and frustrating.  Several factors make it different in character and more unpredictable compared to other immigration procedures.  One is the involvement of government agencies other than U.S. Citizenship and Immigration Services, who have different agendas, priorities and funding resources.  The application first goes to a “state workforce agency” (the “SWA”) in the state with jurisdiction, and then to one of 9 regional offices of the U.S. Department of Labor Employment and Training Administration (“DOL”).  Their primary mission is to protect U.S. workers, not to serve U.S. employers seeking to hire aliens or the foreign nationals themselves.[4] 

Another frustrating element is that more than in other procedures, success depends on factors largely beyond the control of the applicant, namely the local labor market availability of U.S. workers in a given occupation. 

Preparing the Labor Certification Application requires awareness of a complicated matrix of legal and procedural requirements and strategic issues.  Careful attention to detail in the job description and requirements, advertising, recruitment and review of the beneficiary’s qualifications is crucial to make sure that all elements of the application are properly reconciled with the requirements and with the employer’s goals.  Making it more difficult is that the rules governing the process change over time as DOL issues new policies and attempts to react to exigencies of the labor market.  With processing times routinely 1 to 2 years or more, thoughtful strategic decisions and careful advance planning are essential. 

This chapter will outline a step-by-step approach to working with the employer and beneficiary, preparing and filing the application, and seeing it through the test of the labor market and other steps towards completion.  The emphasis will be on processing cases in Massachusetts but the discussion will also be generally applicable for other states.

§ 2       Step 1 - Gather Relevant Information, Establish Client Expectations

It is essential to go through a thorough process in advance of gathering information and documents from the employer and beneficiary.  Such information includes detailed background on the employer and its business operation and finances, a detailed job description and statement of requirements for the offered position, information about any recruitment the employer may have conducted for the job and related hiring statistics, academic and experience credentials of the beneficiary, including reference letters from prior employers detailing experience and skills relevant to the subject job in the application, and biographical and U.S. immigration history background for the foreign national.  A questionnaire listing the documents and information that are needed will be a useful tool.[5] 

Establishing good communication and setting appropriate expectations of the employer and beneficiary are also very important.  Following are points of further inquiry and explanation about the labor certification process that should be raised in the initial client meeting or communication:

• Inquire into the complete immigration status and employment history in the U.S. of the alien to spot any unlawful presence, failure to maintain nonimmigrant status or unauthorized employment issues.
• Inquire whether any prior employer has filed a labor certification for the employee or for the employee’s spouse, and if so what was the priority date and what happened with the application.  This may provide the opportunity for Section 245(i) benefits, if needed, or for “7^th year” H-1B extension.
• Make sure the employer and employee understand that labor certification is not an entitlement or process with an objective standard reasonably under the employer’s control, like an H-lB petition.  Explain that the main purpose of the process is to protect U.S. workers by ensuring that a regular permanent job opening is first offered to any qualified U.S. worker before it can be filled by a foreign national, and that the end result will be dictated solely by whether such a U.S. worker is available, a factor ultimately beyond the applicant’s or attorney’s control.  The fact that the beneficiary may already be working in the job in a temporary status and have become valuable to the employer is meaningless in the process.
• Particularly where it is an individual foreign national beneficiary that has retained the attorney, make sure both parties understand that Labor Certification is an application process solely of the employer.  At this stage the employee is only a beneficiary with no standing to directly participate.
• Finally, warn the parties that process times are unpredictable and can be quite lengthy.  The DOL and relevant state agencies involved in the process are under funded and understaffed, and most cannot process the volume of cases before them in any timely manner.  In many locations, the April 2001 filing deadline for Section 245(i) applications under the LIFE Act created such a massive backlog it is still being worked on.  In Massachusetts, the best estimate is one to two years for the process, but that can change.  The best advice is for concerned parties to watch process time information that DOL posts on its web site.[6] 

§ 3       Step 2 - Make Initial Strategic Decisions, Know Deadlines

The following are strategic decisions to make early on regarding how to proceed in the application and important factors which should be reviewed to establish any deadlines.

§ 3.1       Whether to File as “Regular” or “Reduction in Recruitment” (RIR) type of application. 

As part of the Labor Certification process the employer must document that it has held the permanent job open to U.S. workers and that despite the test of the labor market no willing, able and qualified U.S. worker was available. There are two ways this is accomplished.  In what is known as the “regular” process, the application is first filed with the SWA, and then after its initial review of the job offer, recruitment efforts are conducted under the SWA’s supervision.  This will include the SWA placing a job order in its own Employment Service recruitment system, and instructing the employer to place a “blind” form of advertisement in a newspaper or journal.[7]  Alternatively, in what is known as “Reduction in Recruitment” (RIR), the application is submitted with documentation that the employer has already “adequately tested the labor market with no success” on its own, by actual good-faith efforts to recruit U.S. workers for the job opportunity “through sources normal to the occupation,” in the six months immediately preceding the application.[8]  

A choice between these two approaches is one of the first decisions to make in the case. If the employer has carried out actual recruitment efforts for the job opportunity for which it plans to file the application, then a request for RIR may be a viable approach, which, if granted, will waive the supervised recruitment.  This strategy creates a strict six-month window for filing the application.  If initial documentation provided by the client indicates that recruitment activities have occurred, the beginning date should be ascertained, such as, in particular, a first publication date for any newspaper or journal advertisement.  That will establish a deadline six months hence by which the application must be filed.  

If the employer has not carried out recruitment activities for the job but plans to, or has carried out some recruitment but not all of the types which will support a complete RIR request, then it can be advised on how to structure a recruitment process sufficient to meet DOL standards for RIR.[9] If the employer plans to file labor certification applications for multiple beneficiaries, then advertising and recruitment efforts can be prepared in a way to support all of the applications in a cost-efficient manner.  The strategy of prospective recruitment efforts planned to support a RIR request will, of course, postpone the actual filing of the application for up to six months while the efforts are carried out and the results documented. 

Other strategic considerations that go into the choice between “regular” and “RIR” filings are:

• Determine the relative timing of the two processes in the jurisdiction of filing. In many locations, RIR remains much shorter because of extreme backlogs in regular process, giving an incentive to use RIR if at all reasonably possible.  In other locations, the processing time difference is not great, particularly when lead time for planned recruitment efforts is factored in. 
• The RIR process is most indicated where the job is somewhat generic, the employer is relatively large, the employer has, in fact, been recruiting in the category and cannot fill its openings, the employer has not had recent layoffs, and the occupation has been recognized by DOL (using its various labor statistics) as having a shortage of workers.
• The regular process is most indicated where the employer is small, the job has unusual duties or requirements, the occupation is not in a shortage category, or the employer is averse to the idea of placing regular advertisements in its own name as a “test” of labor market when it is not, in fact, actively seeking to fill the position. 
• Inquire if the employer has had layoffs of U.S. workers within the previous six months.  If a layoff included a U.S. worker or workers may be qualified for the job offered in the labor certification application, then RIR is not appropriate and will be denied.  If there have been other layoffs by the employer or if there have generally been layoffs in the employer’s industry such that any advertising for the subject job could be expected to generate a significant response, it will be the better strategy to file as a “regular” application.  That will postpone the test of the labor market to some time later after the initial SWA review, possibly one year or more, when labor market conditions may have changed.  

§ 3.2       How Much Time Does the Beneficiary Have Left in H-1B or Other Nonimmigrant Status

Another filing deadline or consideration of urgency may be dictated by the beneficiary’s nonimmigrant status.  As described above, the process time for a typical labor certification application is quite long, usually exceeding one year.  It is not until the labor certification is approved that an I-140 Immigrant Petition of the employer and concurrent I-485 Application to Adjust Status of the beneficiary can be filed, giving an opportunity for the alien to apply for employment authorization as a pending permanent resident.[10]  Therefore, it is important to determine right away how much time the employee has left in his or her nonimmigrant work-authorized status, typically H-1B or L-1B, and what strategies may be necessary to keep the person authorized to work in such a temporary status for as long as it takes to get the labor certification processed to successful conclusion. 

There is a limit of six years of authorized admission in the U.S. in H-1B status.[11]  However, a special provision allows H-1B nonimmigrants to be granted extensions of status in one-year increments beyond the six years when more than 365 days have passed since the filing of a labor certification application for the alien that has not been denied.[12]  Thus, it should be established what is the date 365 days before the alien reaches that six year maximum, and that date (essentially, the 5^th anniversary in H-1B status) becomes  an absolute deadline by which the labor certification application should be filed in order to preserve eligibility for later filing the “7^th year” H-1B extension.

If the alien is an L-1B nonimmigrant, getting the labor certification processed could be more urgent.  The limit on L-1B admission in the U.S. is five years, and there is no procedure for extensions beyond that time in the event of a long-pending labor certification.[13]  If the beneficiary qualifies, it may be possible to plan on a change of status to H-1B at the end of the 5^th year in L-1B status.[14]

§ 3.3       Verify the Employer’s Ability to Pay the Offered Wage

In the labor certification process, the job offer must “clearly show that the employer has enough funds available to pay the wage or salary offered the alien.”[15]  At the time of filing the application, this is normally accomplished by a statement from the employer.  In the I-140 Immigrant Petition process, which comes after labor certification, more particular documentary evidence will be required to prove that as of the labor certification filing date (known as the “priority date”) the employer had the ability to pay in the form of federal tax returns, annual reports, audited financial statements or, in the case of a U.S. employer with 100 or more workers, a statement from a financial officer.[16] 

This requirement should be reviewed with the employer so that it is aware of the financial material it will have to provide and to spot any potential problems.  If the employer is very small or a start-up company that has not yet established positive cash flow, for example, consideration should be given to holding off on the labor certification filing.  It is possible for the labor certification to be approved but the I-140 denied for insufficient financial viability at the original filing date, because the case was filed prematurely.

§ 3.4       Where to File

Regulations require the application to be filed with the SWA serving the area where the alien proposes to be employed.[17]  Thus, if the job has a fixed permanent location, the labor certification application must be filed in that state.  On the other hand, DOL policy recognizes that some applications may involve employment at various unanticipated work sites around the U.S. with no fixed permanent location.  In those cases, the application is to be filed with the SWA having jurisdiction over the area in which the employer's main office or headquarters is located.

Thus, where the position offered is a “roving consultant” position, or simply one where the employer has multiple offices in the U.S. and anticipates it may transfer the employee between them depending on business circumstances, job flexibility to move between locations can be preserved by filing in the state of the corporate headquarters or main office. 

In some circumstances, this may make available a strategic choice between two locations for the labor certification filing.  Within its business, the employer may reasonably be able to either assign the job permanently to a fixed location in one state before filing the labor certification or designate it as “roving” or otherwise subject to unanticipated transfer.  This opens the option to choose between two states as the location to file the application where one may present a strategic benefit such as a faster process time.  Any process time or other advantage of filing in the “fixed location state,” however, should be carefully weighed against giving up the flexibility for future transfer of the job between locations that would be preserved in the “headquarters state” approach.

§ 4       Step 3 – Understand Legal Requirements and Prepare The Application 

The basic Application for Alien Labor Certification is made on DOL Form ETA 750.  There are two parts, the “Offer of Employment” (Part A), which is signed by the employer, and the “Statement of Qualifications of Alien” (Part B), which the beneficiary signs.[18]  Ultimately, Part A must state a job offer of regular, full-time employment in a permanent position that complies with the legal requirements, and Part B must reflect the alien having the education and experience to qualify for the job. 

Preparing these forms is far more complex than simply filling in the blanks with whatever basic information from the employer or alien seems responsive.  A series of important legal requirements and strategic considerations must be understood and taken into account.  They may indicate ways to complete the application that conflict with the employer’s actual business practice.  Getting to a point where all elements of the application work for the employer’s needs and fit into the web of legal requirements is an art.  Following is a discussion of the component parts of the application and relevant issues for each one.

§ 4.1       The Job Description

The first thing to establish is the basic job title and description (Items 9 and 13).   This starts with what information the employer provides as the title it uses internally and what duties are actually carried out. Typically, though, the employer’s information will need to be modified to comply with the legal requirements or address proper strategic planning.

                § 4.1.1    Recognized Occupation from a DOL Source

The title and duties must clearly place the job in a recognized occupational field as listed in one or both of two DOL-published reference sources, the “Dictionary of Occupational Titles” (DOT) and the on-line “O*NET” database. 

The first action the SWA will take upon review of a labor certification application is to assign an “occupational code” to the job offer, from one of these sources.  That code will be used to determine other issues that follow on, such as whether the prevailing wage is met or the job requirements are acceptable. 

Thus, it is important to consult these reference sources ahead of time and identify which occupational field from their lists is most appropriate and presents the best strategic advantage, and then the title and job duties should be drafted in a way to unambiguously suggest the correct field to the SWA.  The DOT and O*NET each provide standard job titles along with generally accepted language describing typical duties for such positions, with the DOT descriptions typically longer. 

The DOT includes over 12,700 job titles, ostensibly representing the full range of possible occupations in the U.S. today.   It provides detailed standardized job descriptions for all of its titles, along with a nine-digit "DOT Code."[19]  The O*NET is newer and published only on-line.  It has a similar structure to the DOT except with a more streamlined 950 occupational categories.  It assigns a six-digit "Standard Occupational Classification" (SOC) code.[20]  There is a “cross-walk” available from the DOT to show an equivalent occupational category in the more consolidated O*NET. 

The DOT is being phased out over time in favor of the O*NET.   In most cases, the SWA still assigns a DOT code, but they are in transition to assigning only SOC codes.  For now, it is important to know the desired occupational field from both sources.

                § 4.1.2    Adapting to the Specific Circumstances

Once the proper occupational category from these sources has been identified, the generalized description can be adapted to the actual duties proposed by the employer by adding appropriate detail and specifics.  Such details can reflect more particularized essential functions, and describe specific tools, technologies or work environments.  The Item 13 description should also indicate the general level of responsibility within the occupation, such as whether the position is to work on a team under close supervision, or operate at a senior level with more independent function and accountability. 

Aspects of the DOT or O*NET description that are not actually relevant to the real job circumstances should be omitted.  In the end, the written description on the form should relate sufficiently to the DOT and O*NET so that it is clear what is the correct occupational code, but should not just repeat the