Green Card Process – Labor Certification

What is labor certification?

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).

Does the labor certification belong to the foreign national?

No. The labor certification is a job specific application which “belongs” to the U.S. employer whom is sponsoring the application for that particular position. The existence of a labor certification casts no benefits on the individual foreign worker involved in the application unless and until the employer files and secures an approval for an I-140 Immigrant Petition from USCIS.

What are the limitations on the labor certification?

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.

I heard that when a labor certification is granted, I can then use it for another employer. Is this true, and if not, why?

No. The labor certification is job specific, location specific, and employer specific and essentially confirms that the specific U.S. employer who filed the application with the DOL was unable to find a U.S. worker to fill the position. The labor certification also verifies conditions of employment such as the wage level and minimum job requirements. These are conditions that tend to change from employer to employer and from job to job. As such the labor certification is only useful for the U.S. employer who actually filed the application with the DOL unless a subsequent employer is a successor-in-interest.

What is my role in the labor certification process?

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.

I have very unique qualifications; therefore I should have no problem getting a labor certification due to my background, right?

Not necessarily. Each U.S. employer sets the minimum job requirements for the position offered to the foreign worker. The job requirements will be comprised of education, training, prior experience and any special or unique skill sets minimally needed for any individual to perform the duties of the position. Because the job requirements are the employer’s minimum requirements for the position, they are also independent of the credentials of the particular individual who is holding the job. Thus, a company may and usually does have job requirements which are different than an individual’s personal accomplishments. It is important to keep in mind that for the labor certification process, a potentially qualified candidate must only be minimally qualified, not most qualified.

Why are the minimum job requirements the required standard for a labor certification?

The DOL regulations concerning the labor certification process provide that “the job requirements, as described, must represent the actual employer’s actual minimum requirements for the job opportunity.” Our firm is dedicated to protecting the best interests of all parties involved which includes following the letter of the law and the regulatory requirements.

When can I know my preference category?

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.

What is a priority date and why is it important?

The priority date is the date the labor certification is filed with DOL for processing. This date becomes relevant at the final stages in the green card process in the event of quota backlogs for immigrant visa numbers as it will essentially establish the foreign worker’s “place in line” for an immigrant visa in the applicable visa category. The priority date will be indicated on the I-140 Immigrant Petition when the petition is filed, and upon approval of the petition it will place the foreign worker’s name on the visa waiting list in chronological order by date. Once the priority date becomes current for the applicable visa category the final step of the green card process, consular processing or adjustment of status, may be sought. The final processing of the green card cannot occur unless the priority date is current.

Once I have a labor certification approved in my name, can my spouse work?

No. The labor certification only serves the purpose of evidencing that the DOL has approved the position offered by the U.S. employer for permanent placement by a foreign worker. It does not confer any benefits on the foreign worker or the spouse. Such benefits would only occur later in the green card process during the adjustment of status stage.

What are the steps involved in filing a PERM labor certification?

After the employer has set the minimum requirements for the position, requested a prevailing wage, and recruited for the position, it will only be eligible to file the labor certification if it was unsuccessful in finding any able, willing, qualified and available U.S. workers for the position. If the employer is not able to fill the position with an able, willing, qualified and available U.S. worker, then it will be eligible to file a labor certification electronically pursuant to PERM.

What happens to my labor certification if the company goes out of business or is acquired or I am laid off?

If the issue is a corporate acquisition or merger, the specifics of the acquisition or merger will need to be considered by our firm to determine whether the labor certification may still be used. If the issue is that the U.S. employer is going out of business entirely or the labor certification position is the subject of a layoff, then the labor certification cannot be used. This is because the labor certification is regarding an open job opportunity with the U.S. employer that the employer desires to fill permanently. If the U.S. employer closes or there is a layoff or other termination, the labor certification is invalid since there is no longer a job to fill. If you are aware that any of these events may occur, please contact our firm.

Can the company use my labor certification for someone else?

No. As of July 16, 2007, once a foreign worker beneficiary is named on an application, a company cannot substitute another employee on the same application.