1. What is Foreign Labor Certification?
The Foreign Labor Certification is a requirement for U.S. employers seeking to employ either:
- Certain persons whose immigration to the U.S. is based on job skills; or
- Nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the U.S.
2. What is the purpose of Forein Labor Certification?
A Foreign Labor Certification contains attestations by U.S. employers as to the:
- Numbers of U.S. workers available to undertake the employment sought by an applicant
- Effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed
3. What kind of work qualifies for a permanent Labor Certification?
Under the permanent labor certification process, the job must be:
- Full time and permanent for which the employer is ready to hire an available qualified U.S. worker
- One where an employer employee relationship exists, evidenced by the employer’s ability to hire, supervise and provide payment to the employee
- One in which generally, the job duties are be consistent with those defined in the Dictionary of Occupational Titles and normally required for the job in the U.S.
- One where the hiring requirements conform to the Department of Labor’s data for usual experience and education standards common to the occupation and the industry
- One that is not tailored to the qualifications of the foreign worker
- One that does not include requirements for a language other than English, without written justification
4. What is the filing procedure for Labour Certification?
Employer files an application on behalf of the foreign worker
- Change to any other nonimmigrant status
- The application is filed on Application for Permanent Employment Certification, Form ETA-9089 with the foreign Labor Certification unit of the State Workforce Agency (SWA)
5. Can I file the Labor Certification application online?
Yes, the LCA Online System has been developed by the Division of Foreign Labor Certification to allow employers or their agents, who intend to employ alien worker(s) for a temporary period in professional occupations or as fashion models the ability to file LCAs – Form ETA-9035E, Labor Condition Application, with DOL via the web.
6. What does the State Workforce Agency do with the filed foreign Labor Certification application?
The SWA reviews the description of job duties and evaluates the employer’s stated minimum requirements for the job. Then it determines the prevailing rate of pay and gives the employer a chance to amend wages and/or requirements that do not comply with Labor Certification.
7. What does the SWA do after the employer files a recruitment report?
The SWA analyzes the employer’s recruitment efforts and the employer’s evaluation of the U.S. applicants, then advises of any deficiencies to be corrected and assembles the documentation to be forwarded to the regional office of the U.S. DOL.
8. What does the DOL regional certifying officer do with the application and supporting documentation once the SWA forwards it to the region?
Once the application and supporting documentation is forwarded to the regional office, the region will analyze the employer’s application and either grant certification or issue a Notice of Findings (NOF – intent to deny). The decision is based on whether the employer has met the requirements of federal regulations governing the foreign Labor Certification program.
9. Where is the appropriate place to file a Labor Certification application involving a foreign worker who will be employed at various unanticipated work sites?
Applications that require the foreign worker to work at several locations in the U.S. should be filed with the SWA having jurisdiction over the area in which the employer’s main office or headquarters is located.
10. Will I be notified once the region receives the file?
Generally, the SWA will notify the employer when the application and all associated documents have been forwarded to the certifying officer in the regional office.
11. How can I check the status of my permanent Labor Certification application?
If you have not been informed by the SWA where the application was submitted that the case has been transferred to the DOL regional office, you should contact that SWA for the status. If the SWA has informed you that the case has been transferred to the DOL regional office, you should contact that regional office. Each regional office has a telephone information retrieval system that allows interested parties to receive an automated response to the status of a case by using either the case number or the employer telephone number.
12. What is the processing time for a permanent Labor Certification?
The processing time to obtain an employment based permanent labor certification can sometimes take up to several years with the state agency and the DOL regional office (the longer processing times occur in states with the largest influx of immigrants, such as New York and Texas). Some cases are extremely complex and require additional evaluation.
13. Can a permanent Labor Certification application be amended by the DOL after certification is granted?
Only in cases of DOL error, will changes be made to a Labor Certification after approval. All other post-certification amendments must be submitted to the USCIS when a Form I-140, Immigrant Petition for Alien Worker is filed.
14. How can I obtain a duplicate copy of an approved permanent Labor Certification application?
To obtain a duplicated copy of an approved permanent Labor Certification application, the employer should request in writing that the USCIS ask the DOL to provide a copy of a permanent Labor Certification if it has been lost. It is the DOL and USCIS policy not to provide copies to individuals.
15. Are there any shortcuts to filing a permanent Labor Certification application?
If prior unsuccessful recruitment efforts have been conducted within the last six months, a letter requesting Reduction in Recruitment may be submitted with the application at the time of filing with the State Workforce Agency (SWA). These applications are given expedited processing if they meet specific conditions like:
- The employer must provide evidence of a pattern of normal industry recruitment efforts conducted in the six months preceding the application filing date. A single three day ad does not constitute an acceptable pattern
- The application must list only the minimum experience requirements and standard requirements for training and education. The job duties/responsibilities on the application must not exceed those considered normal for the occupation
16. How long will it take to receive the Labor Certification or denial?
The Online application system will automatically determine, within minutes, if the submitted Labor Certification Application is certified or denied based on information that was entered. Faxed applications will receive notification within seven business days.
17. What is an H-2A temporary Labor Certification?
The H-2A Labor Certification program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
18. How long is an H-2A temporary Labor Certification valid?
The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary.
19. What constitutes a temporary need for H-2A temporary Labor Certification?
The employer’s need for a worker must be of a seasonal or other temporary basis. A seasonal basis is the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may be continuous or carried on throughout the year. A temporary basis is for a limited time only or is contemplated for a particular piece of work, usually of a short duration.
20. What is the required time frame for filing an H-2A temporary Labor Certification application?
Employers are advised to file requests for H-2A certifications at least 45 days before the certification is needed. Conversely, SWA’s have been instructed to return H-2A certification applications filed more than 120 days before the worker is needed.
21. What is an H-2B Labor Certification?
The H-2B Labor Certification program establishes a means for U.S. nonagricultural employers who anticipate a shortage of domestic workers, to bring temporary nonimmigrant foreign workers into the U.S. H-2B eligibility requires that the job and the U.S. employer’s need for the foreign worker be of a temporary nature. The need must be for one year or less and can be either a one-time occurrence, seasonal, peak load or intermittent. Temporary employment should not be confused with part-time employment which does not qualify for temporary (or permanent) Labor Certification.
22. How long is the H-2B Labor Certification valid?
The H-2B Labor Certification application shall be valid for the period of employment indicated on the Form ETA-750A and B, Application for Alien Employment Certification. However, in no event shall the validity period exceed 364 days.
23. What constitutes a temporary need for H-2B temporary Labor Certification?
The job must be temporary in nature and the need is for one year or less. The employer’s need cannot be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is either a one-time occurrence, seasonal, peak load or intermittent need.
24. What is a D-1 crewmember Labor Certification?
Performance of long shore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exceptions. One such exception requires an employer to file an attestation stating that:
- It is the prevailing practice for the activity at that port
- There is no strike or lockout at the place of employment and
- That notice has been given to U.S. workers or their representatives