FAQs

Labor Certification

What is labor certification?
A labor certification is an authorization to an employer permitting the permanent immigration of a foreign worker who has the qualifications for the job. The company may then file a visa petition, Form I-140, to immigrate a person. The labor certification constitutes verification from the U.S. Department of Labor that the company has met its burden of proof that they have a regular, full-time job, offered at the prevailing wage, which they have tried to fill with a U.S. worker and have been unable to do so.

Is the labor certification mine?
No. The labor certification is not about an individual, it is about a job. It "belongs" to the company and the employee has no standing (rights) to its benefits unless and until the employer files the I-140 and it has been approved.  The employee's immigration status, physical location, or present employment is irrelevant to the labor certification since it is about a job at the employer's site.

What are the limitations on the labor certification?
A labor certification is specific to the job, the location of the job and the company. It cannot be "transferred" to another company or to another site outside the normal commuting range. If any of these three factors changes the labor certification is invalid for that employee, e.g. a promotion or job reassignment, relocation, termination of the employer relationship. In certain circumstances, a successor in interest employer (as a result of a merger or acquisition) may be able to continue a labor certification that was previously filed on behalf of a prior company. There are some highly technical rules applied in this situation so it should not be assumed that a company is a successor in interest to another company.

I heard that when a labor certification is granted, I can then use it for another employer. Is this true, and if not, why?
No. The labor certification confirms that the specific company has tried to find a U.S. worker. The other employer may not have made such an effort. The labor certification also verifies the wage level and makes sure the job requirements are the true minimums, all conditions which change from employer to employer. The labor certification is specific to a location and job.

What is my role in the labor certification process?
Most of the labor certification process will involve the company, rather than the employee. The employee plays an important role in the process but also must remain detached from it. The DOL regulations say that if the foreign employee is involved with the recruiting process, the process is null and void. The employee helps by providing their work background so we can be sure that the requirements of the job do not exceed their personal qualifications. However, the employee has no other role to play in the process since the company is the one that must set the minimum requirements and determine important issues such as wages.

I have very unique qualifications, therefore I should have no problem getting a labor certification since my personal background is so special, right?
Not necessarily. Each company has certain minimum requirements for the job which include education, training, prior experience and any special or unique skill sets needed to perform the duties of the position. These are independent of whoever is in the job. Thus a company may have requirements which are different than your personal ones.

A labor certification is about a job so the requirements for that job are what is at issue, not the employee's personal background. Sometimes these track nicely, most often they are quite different. It is the company's requirements, not the employees' background which determine the qualifications for the labor certification.

My friend's lawyer filed his labor certification case based on his background and input and never mentioned this. Why?
Lawyers are like the population in general. Some are more experienced. Some view their legal obligations differently. The client in a labor certification, regardless of who pays the fees, etc., is the employer. The lawyer's duty is to protect his client's interests. It is a federal felony to claim special requirements on the labor certification that are not actually the company's true minimums. The friend's lawyer may not know this or chooses not to advise the employer of this liability. This is called legal malpractice and as far as the government is concerned, it is a criminal offense which can include the company, the employee and the lawyer.

What is a priority date and why is it important?
The priority date is the date the labor certification is filed for processing. This date is important since it will later be the date shown on the I-140 when the visa petition is filed and upon approval will place the employee's name on the visa waiting list based on this chronological filing. The date of approval of the labor certification is irrelevant in determining the priority date.

If there is a quota backlog in the visa category, then the priority date becomes important since it is the date by which that person will be placed in the queue. The final processing of the green card cannot occur until the priority date is current.

Once I have a labor certification approved in my name, can my spouse work?
No, the labor certification only certifies a shortage in the job category at the employer's site. It does not confer any benefits on the employee or the spouse. That occurs later during the adjustment of status stage.

What is the difference in PERM, Traditional (TR) and Reduction in Recruitment (RIR) labor certifications?
Basically a labor certification is a labor certification. The final product is the same. However, the way in which they were processed may be different.

PERM (Program Electronic Review Management System) was implemented by the DOL and is the only way that labor certifications can be filed. PERM was initiated on March 28, 2005. Under PERM the DOL has specified specific requirements that the employer must meet before filing labor certification. After the employer has set the minimum requirements for the position, requested a prevailing wage, and recruited for the position it will only be eligible to file the labor certification if it was unsuccessful in find any qualified and willing US worker or resident to fill the position. If the employer is not able to fill the position then it will be eligible to file a labor certification electronically pursuant to PERM. Prior to the implementation of PERM labor certification were filed pursuant to traditional (TR) or reduction in recruitment (RIR) guidelines. All the pending TR and RIR cases have been sent to one of two backlog elimination centers and the DOL anticipates eliminating the backlog by September 30, 2007.

Traditional cases were filed with the State’s Labor agency. The State then reviewed and advised the employer of any issues to be clarified. Once responses to these issues were received, the State Labor agency had the employer run a specific ad for the job in a specified publication. The advertisement was dictated by the Labor agency and they received the replies/resumes which they forwarded to the employer. The employer then had to review each applicant and determine if they were qualified. If there was a qualified worker, no labor certification was issued. If not, the case was sent to the DOL for final review.

RIR was only available to companies which could show that they had been actively recruiting for the position within the last six months. This meant proof that the company had placed ads and had otherwise done that which was customary in the industry to recruit for the job category as stated on the labor certification. What applied to one industry may not have been appropriate to another so the first main issue is what is customary. If qualified the company could have requested "fast track" processing of the case. Assuming that the company had met its burden of proof, the labor certification would be issued. Since PERM has been implemented TR and RIR cases are no longer filed. All labor certification are now filed pursuant to PERM.

What happens to my labor certification if the company goes out of business or is acquired or I am laid off?It will depend on the specific circumstances. The labor certification is about an open job that the company is trying to fill. If the company closes or there is a layoff or other termination, the labor certification cannot be used. There is no job to fill.

There are special rules that apply when an acquisition or reorganization takes place but generally, as long as the job remains available, there is no effect on the labor certification's validity. Change of ownership is not generally a problem.

Can the company use "my" labor certification for someone else?

The labor certification is about a job, it does not "belong" to anyone except the company. As of July 16, 2007, a company can no longer substitute another employee on the labor certification.

Once the I-140 is filed, do I then "own" the labor certification and the priority date?
Here the rules are a little different. Once the I-140 is approved based on the labor certification, that employee is "awarded" the priority date and is then eligible to immigrate depending on quota backlogs. However, the company is free to revoke the I-140 and recover the labor certification's validity at any time before the employee obtains permanent residence (the "green card") after which it is used up forever. If the employee is terminated or quits, the employer may revoke the I-140 to "reuse" the labor certification for someone else.

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