The Labor Certification Process
To apply for Labor Certification (LC), an applicant must obtain an employer to sponsor her/him through a job offer. The LC process consists of three phases leading to permanent residency:
- The first phase involves obtaining LC from the Department of Labor (DOL).
- The second phase involves obtaining an immigrant visa petition approval from the United States Citizenship and Immigration Services (USCIS) based on the DOL LC.
- The third phase involves the applicant's application to either adjust status from non-immigrant to permanent resident here in the U.S. or obtain an immigrant visa at an American consulate in the home country.
To procure permanent residency through the LC process, the sponsoring employer must be able to verify, through a good faith recruitment effort, that there are no qualified U.S. workers available, willing, and/or able to fill the position being offered.
There are two ways to process the LC application: Reduction in Recruitment (RIR) or Regular (NRIR).
The first, RIR, involves advertising and recruiting before filing the LC application. RIR filings are generally placed in the fast-track at the local and regional DOL. As a result, RIR filing will oftentimes drastically reduce the total processing time.
When an RIR application is filed, the employer will be requesting a partial or complete waiver of additional recruitment for the position. This waiver can generally be obtained when the sponsoring employer is willing to conduct recruitment before filing the LC application. For RIR processing, the sponsoring employer will need to test the local job market to establish that no qualified American workers are able, qualified, and/or willing to accept the offered position. This will require the sponsoring employer's placement of advertisements in local newspapers, nationwide journals, and in some instances, the Internet.
Pursuant to DOL regulations, advertisements cannot be older than six months at the time the LC application is filed. The application, along with a summary of recruitment efforts, will be filed with the local employment commission on completion of the recruitment phase.
The second, NRIR, involves advertising and recruiting under the supervision of the DOL, after the LC application has been filed. Your attorney will guide the sponsoring employer through the entire recruitment process by applying the firm's expertise and knowledge to determine what type of recruitment is best suited for each specific case. The course of action will depend on the type of employment offered, the location of the job offer, and the goals of both the employer and employee.
When an NRIR application is filed, all recruitment efforts to test the labor market for any able, willing, and/or qualified U.S. workers are performed by the employer under the direct guidance and supervision of the local DOL. Once the recruitment period is completed, the employer will summarize the results of the recruitment efforts to the DOL. The DOL's local job bank will be involved in this process and might screen applicants and refer applicants for interviewing. On certification of the LC by the DOL, we will file the request with the USCIS to have an immigrant visa made available to the applicant. Form I-140 will be used to petition the USCIS center with jurisdiction over the employment location.
Please note that securing the certification from the DOL is a prerequisite to filing Form I-140. At the time of filing Form I-140, the sponsoring employer must show the financial capacity to pay the proffered salary. To prove this, the USCIS might solicit evidence that the sponsoring employer had the ability to pay from the date the LC was filed.
This evidence may include:
- a copy of the sponsoring employer's most recent corporate income tax return (with all schedules and attachments)
- a notarized letter from the financial officer confirming the sponsoring employer's financial ability to pay (applicable only to companies with 100 or more employees)
- or an annual report, with independently audited financial reports. On approval, the applicant will be eligible for permanent residency
This article is included to inform you, in general, about U.S. immigration law. The information contained herein is not intended to provide solutions to individual problems. Thus, it cannot be relied on as legal advice. We caution you to not attempt to solve individual problems on the basis of this information and advise you to seek competent legal counsel to address your specific issues.