Labor Certification Process
A permanent labor certification, which is issued by the Department of Labor (DOL), allows an employer to hire an alien to work permanently in the United States. Before the DOL can approve an employer’s request for a permanent labor certification, it is required to test the job market for availability of U.S. workers. This is done by completing and filing Form 750.
Any employer filling a position with a foreign national pursuant to the issuance of a labor certification must pay a wage that meets or exceeds the prevailing wage for that position in the area of intended employment.
Job Restrictions Must Meet Business Necessity Test
Any restriction in the job, such as experience, education or training, must meet a business necessity test. An employer cannot simply look at the resume of the foreign national and devise the job requirements based on the skills of the foreign national. Rather, the skills required to perform the job must be shown to be necessary in order to meet a business necessity test.
There are two ways in which to proceed in reference to recruitment. The first is to conduct recruitment activities prior to filing the application for approval of the permanent labor certification with the Department of Labor. The second is to file the application first, along with a proposed advertisement, and then conduct the recruitment.
Generally, the more specialized the job duties, the more specialized the place of advertisement. If the job is a highly-paid position, then the likelihood is that the advertisement will be placed in a national publication such as The Wall Street Journal. The job description should be posted at the job site for 10 consecutive working days, and the results of any in-house recruitment should be reported as well as any referrals through advertisements.
Advertising after Filing Application with State Employment Service
After Form 750A&B are filed with the state employment service along with the proposed advertisement, the state employment service will review the application as to prevailing wage and business necessity restrictions. If the wording of the job description, the restrictions on the job and the prevailing wage meet standards, a blind order number will be assigned to the state employment service, where the job will be posted.
Regional Office of Department of Labor
After the state employment service finishes its screening process with the application, the application is forwarded to the regional office for the Department of Labor for final approval.
Screening of Applicants
Care should be given in instructing the person in charge of screening that this is an approved process by the Department of Labor. Any applicant must have his or her application reviewed in the normal process by the company. All considerations should be objective and not subjective. Criminal prosecutions have resulted from a failure to honestly assess American applicants for the position sought by an alien pursuant to the Labor Certification process.