What is Labor Certification?

By April 11, 2018Immigration Law Blog
what is labor certification

What is labor certification? If you are a U.S. employer seeking to hire individuals who will be immigrating to the U.S. permanently for work based on their job skills for a job which authorized and qualified workers are not available in the U.S. then you need to understand the ins and outs of labor certification.

As an immigration law firm in California, Nelson and Associates have plenty of experience in coaching employers through the labor certification process. So today, we’re going to cover what you need to know to get things done by the book.

What is Labor Certification?

Labor certification refers to the certification of an employer by the Secretary of Labor in the US. This certification begins the process of hiring an immigrant worker on a permanent basis.

To obtain labor certification a U.S. employer must attest to the number of U.S. based employees who are available to commit to the job being sought by the immigrant worker. This is done through interviewing prospective U.S. employees for the job and being unable to find one qualified enough to perform it. Labor certification also includes information on the effect of the alien’s employment by that company on the working conditions and wages of U.S. workers who are similarly employed.

The purpose of labor certification is to show the U.S. government that by hiring employees outside of the U.S. for specific positions, U.S. employees with the same qualifications are not being displaced and the U.S. job market, in general, is not being impacted negatively by hiring overseas employees.

When Do You Need to Seek Labor Certification?

There are a variety of methods that a company can use to hire a non-U.S. employee for a job on a longterm but temporary basis. Some of these methods include the H-1B visa, TN status, and L-1 visas. If, however, a company is seeking to hire an immigrant employee on a permanent basis, they must begin the sponsorship process to get the worker a green card.

The first step in sponsoring an immigrant for their green card is almost always the obtaining of labor certification by the sponsoring company.

In most instances, companies will bring over out of country employees on a temporary visa and when they decide to employ that person permanently, they begin the process of sponsorship.

Do You HAVE to Get Labor Certification?

There are some classes of alien employees do not need labor certification in order to obtain an employment-based green card. Employees that are typically exempt from the need for labor certification in order of preference include:

  • Aliens with unrivaled successes in Business, Sciences, Arts, Education, or Athletics; reknowned professors or researchers; and international executives or managers (e.g., managers or CEOs of multinational companies). Employees in this category are refered to as being “Employment First Preference.”

  • Professionals whp have advanced degrees, or individuals with exceptional Arts, Science, or Business experience. These employees are referred to as being “Employment Second Preference”.

  • Skilled Workers, Professionals with Baccalaureate Degrees and Other Workers. These employees are referred to as being “Employment Third Preference”.

  • “Special” immigrants (this includes religious workers). These employees are referred to as being “Employment Fourth Preference”.

  • Immigrants who are willing to invest $500,000 to $1 million in a business that will create a minimum of 10 full-time jobs in the United States (Employment Fifth Preference)

How Long Does It Take to Obtain Labor Certification?

If you do require labor certification for a non-U.S. employee it can take between 6 and 24 months for labor certification approval.

Getting Labor Certification

If the labor certification is not approved, the worker on a temporary visa can still work for the remainder of the time that their visa is valid and it is possible to reapply for labor certification during that time.

If the labor certification is approved by the department of labor, the employer must then file an immigrant petition for alien workers with the  U.S. Citizenship and Immigration Services (USCIS).

The Immigrant Petition for Alien Workers

As the next step in sponsoring an immigrant employee for permanent employment, this petition states your intention as an employer to hire the immigrant that you are sponsoring. When this petition is approved by the department of labor it is then passed on to the U.S. Department of State’s National Visa Center (NVC). Once your client’s petition reaches the front of the line for visas, the NVC will notify you as an employer as well as the foreign national. From here the NVC will invite the foreign national to apply for their immigrant visa along with their immediate family members. Immediate family members are considered younger children under 18 and spouses.

It’s important to note that while you can file an immigration petition for the employee you are sponsoring, you cannot directly petition for the spouse or dependents of the employee. That said, they can apply for immigrant visas along with the sponsored employee once they reach the front of the line to be granted a visa.

How long does it take to hear back in regards to a petition? The time span varies greatly, but you can monitor processing times directly on the UCIS website.

How long does it take to hear back in regards to obtaining a visa number from an approved petition? The time span on this too ranges greatly depending on the current backlog in the immigration system. You can find information on the immigrant visa processing time directly on your state department’s website here.

Need Help With the Labor Certification Process in California?

If you need help walking through the labor certification process and if you live in or near Pasadena, California, then pick up the phone and call Nelson and Associates at 626-683-3451. Having practiced immigration law in California since 1990, attorney Nelson is more than qualified to help you through the process and guide you through immigration law for employers. With payment options to suit every budget, Nelson and Associates are dedicated to helping you to navigate immigration law no matter whether you are a small local business or just getting off the ground.