A labor certification is essentially an approval or certification issued by the U.S. Department of Labor (DOL) which verifies that the permanent hiring of a foreign worker to a particular position will not displace U.S. workers. The labor certification process requires that the U.S. employer show a good faith recruitment effort to determine whether there are any able, willing, qualified and available U.S. workers for the position offered to the foreign worker. Upon completion of the labor market test, the U.S. employer will submit the application for permanent employment certification (e.g., labor certification application) to the DOL for processing. Once approved, the labor certification constitutes verification from the DOL that the U.S. employer has met its burden of proof that it has a regular, full-time job, offered at the prevailing wage rate, which the employer has tried to fill with a U.S. worker and has been unable to do so. Upon the issuance of the labor certification by DOL, the U.S. employer may then proceed with the next step of the green card process on behalf of the foreign worker, which is filing an Immigrant Petition, Form I-140, petition with the U.S. Citizenship and Immigration Services (USCIS).
A labor certification is job specific, location specific, and employer specific. As a result, it cannot be “transferred” to another position nor can it be transferred to another job location/site which is outside a normal commuting distance. Additionally, in most cases a labor certification cannot be transferred to another employer. Only in rare circumstances can a successor in interest employer (as a result of a merger or acquisition) possibly be able to continue a labor certification that was previously filed on behalf of a predecessor company. The successor in interest exception involves highly complicated rules so it should never be assumed that a new employer will be considered a successor in interest for immigration purposes. In totality, if any of these three factors change, chances are the labor certification will become invalid for that foreign worker, e.g. a promotion or job reassignment, relocation, termination of the employer relationship or other similar changes can invalidate the labor certification. If any such changes occur in relation to a foreign national’s position where a labor certification is under draft or has been filed, the foreign national and/or the U.S. employer should contact their our firm to discuss further.
Most of the labor certification process involves the company, rather than the foreign worker. The foreign worker plays an important role in the process as he or she must verify that he or she possesses the minimum requirements for the job offered prior to commencing employment with the sponsoring employer, but aside from this involvement the foreign worker must remain detached from the labor certification process. The DOL regulations provide that involvement of the foreign worker in the labor certification process is grounds to invalidate the labor certification due to improper employee control over the process. It is important to note that the U.S. employer is the entity which must determine the minimum requirements for the position offered and determine important issues such as wages and other relevant working conditions.
The preference category is determined by the minimum job requirements that the employer sets for the labor certification position and is completely independent of any particular individual’s qualifications. Our firm will be unable to advise a foreign worker of the applicable preference category until the point that the employer has finalized its minimum job requirements for the labor certification position. For additional information regarding preference categories, refer to our Green Card Quota Backlogs page.