Labor certification

Labor certification is a United States of America immigration concept. There are several options available to US employers who wish to hire foreign, nonimmigrant workers on a temporary but long-term basis: H-1B visas, L-1 visas, TN status and other options. These temporary options are often sufficient to meet the needs of employer and employee. When a US employer wishes to hire the services of the foreign worker on a permanent basis, however, a complex sponsorship process for the green card begins, a process that can take years. Generally (although not always) the first step in that process is labor certification. Labor certification is a process of proving that there are no qualified US workers for the position being offered. If there are qualified US workers - in fact, even generally speaking if there are even minimally qualified US workers - then the foreign worker cannot be offered the position on a permanent basis. This does not necessarily mean that the foreign worker will be immediately replaced by a qualified US worker, though. The foreign worker can still serve out the remainder of their existing US temporary visa, and may well be able to re-apply for labor certification and be approved. But it does create a substantial inconvenience for the US employer who wishes to hire a foreign worker, which does provide some protection to US workers, although the process is controversial.

The original labor certification process, used exclusively up until about 1998, involved a lengthy interview process, whereby instructions were provided after filing the case as to how the employer was to go about recruiting for the position. After complying with those instructions, the employer needed to persuasively argue why any US applicants for the position were unqualified - otherwise the position would be denied. Beginning in 1998, a more streamlined approach called Reduction in Recruitment (RIR) was introduced. Under RIR, the sequence of events was reversed: the employer first did the recruiting, and then filed the case with evidence that no minimally qualified US workers could be found.

RIR tended to speed processing times up somewhat, so that labor certification times which were previously measured in years began to be measured in months. Both regular and RIR labor certification involved filing first with the Department of Labor for the individual state where the job was located (the individual state presumably being most familiar with local labor market conditions) and then, if approved at the state level, the case was then transferred to the federal Department of Labor for final approval.

More recently, in March, 2005, a completely electronic labor certification system, PERM (Program Electronic Review Management) came into use. PERM is intended to reduce labor certification times to under 60 days. Ironically, however, PERM may be creating as many backlogs as it is intended to solve. Because of congressionally-mandated annual quotas, there may not be enough visas available to grant green cards to everyone who is approved by PERM, which may have played a role in the retrogression of priority dates on September 13, 2005.

As with many immigration procedures, labor certification tends to be controversial. Its backers argue that it is a rigorous procedure for determining that only foreign workers who truly have skills needed by the US labor market and not readily available locally are hired. Its critics, however, say that US employers will first hire a foreigner on a long-term temporary visa, and then try to tailor the job description so that that foreigner is the only person who could possibly be hired - thus gaming the labor certification process to guarantee a favorable outcome. However, the job requirements, as described by the petitioning employer in the labor certification application, must represent the employer’s actual minimum requirements for the job opportunity. Those job requirements described on a labor certification application is reviewed and evaluated closely by the Department of Labor in accordance with the Code of Federal Regulations that sets forth the standards for determining the appropriate requirements for a job opportunity. Ultimately, the employer must prove that they have not hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.