The Labor Certification Process
Kristen A. Chang and David J. Long
Long, Chang & Associates, L.L.P.
4915 Piedmont Parkway, Suite 103
Jamestown, NC 27282
Phone: (336) 855-5700
Labor certification is the process through which
a U.S. business can sponsor an individual by providing a job offer
for a specified job position to the individual. If approved by the
U.S. Department of Labor, the individual (if otherwise qualified)
can file for permanent residency with the USCIS (formerly INS) for
himself/herself and his/her spouse and unmarried children under
the age of 21.
While the process seems simple, it is not. The
process can be time-consuming and involves careful planning from
the outset. Unfortunately, cases are not always prepared carefully
and both the employer and the proposed individual worker often face
problems with their cases at the green card stage which could have
been addressed at the time the labor certification was initially
filed. Following is a list of 5 commonly asked questions about labor
1. What are the basic steps in a labor
certification case and how long will it take?
A labor certification case can typically take several
years from the time of filing the labor certification to the time
the green card application is approved by the USCIS. The long delays
are because there is such a high volume of these cases filed and
the limited number of people working on the cases at the state Employment
Security Commission, federal Department of Labor and the USCIS (formerly
INS). The exact time usually depends on the state where the case
is filed. Under regular processing, the state Employment Security
Commission can take up to 2 years simply to review this Form ETA
750. Under a faster process (called Reduction In Recruitment or
RIR), the process at the state level can be shortened. Assuming
it is a traditional labor certification case (not RIR), once the
state Employment security Commission reviews the case, then the
employer must advertise the job and report the summary of recruitment
(describe how the job was advertised and who responded to the advertisements)
to the state Employment Security Commission. This recruitment time
takes about 2 months. If the state agrees with your efforts, then
the state Employment Security Commission forwards the case to the
federal Department of Labor which reviews it and, hopefully, approves
the labor certification by placing a stamp on the original Form
ETA 750. The Department of Labor can take anywhere from a few months
to over a year to approve the labor certification case. With an
approved labor certification, the proposed worker can typically
file for the green card with the USCIS if otherwise eligible. However,
once filed with the USCIS, the green card case typically takes about
3 years to be approved.
2. Am I legal or can I work once a labor
certification case is filed?
The simple answer is that simply having a labor
certification case filed on your behalf does not make you legal
and does not, in and of itself, give you legal permission to work.
Basically, you remain in the same status that you were in immediately
prior to filing the labor certification case. As a result, if you
are illegal or out-of-status at the time the case is filed on your
behalf, you will stay illegal or out-of-status until the green card
case is ultimately approved by the USCIS which could be several
3. When can I legally work based on my
labor certification case?
An individual cannot work based on an approved
labor certification case until the individual receives an Employment
Authorization Document (also known as an EAD or work permit).from
the USCIS. An individual can file for a work permit at the time
the application for permanent resident (Form I-485) is filed with
the appropriate USCIS Service Center. After filing for the work
permit, it typically can take 3 months to receive the work permit.
4. What are the minimum requirements for
the job in a labor certification case?
The employer must advertise the job based on the
particular state’s requirements. Typically, a state will require
2-3 days of newspaper advertisements. In addition, the employer
must post a notice about the job offer at the employer’s place
of business. In advertising the job as required for labor certification
purposes, the actual, minimum requirements (education, training
and prior work experience) for the position must be listed. The
key work is “minimum”. The requirements for the job
position must be what the employer is requiring at minimum for the
job. This is often very different than the experience the employer
would like for the employee to have. For example, while an employer
may want an employee with a college degree and several ears of work
experience, the employee must list the minimum amount of education,
training and previous work experience that the employer is requiring.
The Department of Labor has guidelines for each job position which
tell it what the typical minimum requirements for the job are. If
the employer’s minimum requirements for the job position exceed
the Department of Labor’s guidelines for the job, then the
employer must either reduce its requirements to the level of the
Department of Labor or prove why this employer requires more education,
training or work experience than the typical requirements for this
type of job. Once the minimum requirements for the job are listed
accurately, then the proposed employee must be able to clearly document
to the Department of Labor and the USCIS that he or she meets the
minimum job requirements trough proof of education, training and
prior work experience (usually through a different employer since
work experience gained with the proposed employer often cannot be
used by the proposed employee).
5. What does it mean that the employer
must prove it has the “ability to pay” the wage?
If the labor certification case is approved, then
the employer must prove to the USCIS that it had the ability to
pay the salary listed on the labor certification. The ability to
pay the salary must be proven for each year beginning with the year
in which the labor certification case is initially filed with the
State Employment Security Commission. The law requires that the
ability to pay be proven based on federal tax returns of financial
statements of the employer. If the employer cannot prove the ability
to pay the wage, then (even though the labor certification case
was approved by the Department of Labor) the case can be denied
at the USCIS level.
Kristen A. Chang and David J. Long are attorneys
in the immigration law firm of Long, Chang & Associates, L.L.P.
Ms. Chang and Mr. Long are members of the North Carolina State Bar
and the American Immigration Lawyers Association (AILA). They may
be reached via telephone at (336) 855-5700 or via e-mail at firstname.lastname@example.org
This article should not be taken as legal advice
for any individual case or situation. This information is intended
to be general and should not be relied upon for any specific situation.
For legal advice, consult an attorney experienced in immigration