As soon as the labor certification is filed with the SESA, the employer must provide employees with notification of the filing.  If there is a union or bargaining representative, notice must be given to it.  If there is no such representative, notice is given by a posting in a conspicuous place.  The posting must remain visible for at least 10 days.  Regardless of the type of labor certification involved, this notice must be given when the application is filed. 

The SESA must approve this form.  Approval depends both on whether the SESA determines the position is appropriate for a labor certification, and whether it finds the application incomplete or otherwise unacceptable.  If the application is not appropriate for a labor certification, it will be returned to the employer.  If the application is incomplete, the employer has 45 days to submit a corrected application. 

Once the labor certification application is satisfactory, the SESA will supervise a period of recruitment for the position.  The SESA will place a job order in its employment security job bank, and the employer must also advertise for the position, and must direct applicants to the SESA, which will then refer them to the employer. 

Advertisement

The advertising requirements vary among each of the nine Department of Labor regions across the US.  There are, however, some rules of general applicability, as well as guidelines to follow that will help avoid an eventual denial of the labor certification application. 

Nonprofessional jobs should be advertised in a generally circulated newspaper for three consecutive days.  The publication should reach the audience most likely to bring the largest number of responses, and some Department of Labor regions require that one of the days on which the ad runs be a Sunday.

Professional jobs and those that are highly technical in nature should be advertised in a professional journal, as should positions requiring a professional degree.  Some regions will allow advertising for these jobs in a generally circulated newspaper, if one of the days the ad runs is a Sunday.

If the position has a foreign language requirements, some regions will allow advertising in an ethnic publication if it is circulated in the area of the job location.  If the ethnic paper is not published daily, in some cases a single ad will suffice.

All advertising should be located in that part of the publication where it will most likely be noticed, and should be so worded as to elicit the greatest number of responses.  The ad must describe the job duties and responsibilities, hours and compensation and the minimum requirements, but should not reveal the name of the employer.  The ad should include the SESA job number assigned to the position and should direct applicants to contact the SESA.  Tear sheets of the ads should be submitted. 

Decision on the Application

If the recruitment attempts are unsuccessful, the SESA will forward the application, along with prevailing wage data to the Department of Labor regional Certifying Officer.  The SESA may include any comments or observations it feels are appropriate, and will make a recommendation on the approval or denial of the application. 

Even if the recommendations of the SESA are followed, the Department of Labor can still deny the application.  Therefore it is important to be familiar with the requirements and procedures of the Department of Labor regional office to which the application will be submitted. 

Once the application is submitted to the regional office of the Department of Labor, the decision will be made on the evidence in the record.  The Department of Labor is guided primarily by two concerns – whether there are available US workers and whether approving the labor certification would have a negative impact on the working conditions of US workers.  Adverse decisions may be appealed to the Board of Alien Labor Certification Appeals.

Last week we covered traditional labor certifications and their requirements.  This week we address other types of labor certifications.

REDUCTION IN RECRUITMENT

If the employer has made attempts to recruit for the position prior to filing the labor certification application, Department of Labor regulations will in some cases allow the employer to request a reduction in the ordinary recruitment process. 

These attempts must have been made within the six months before filing the labor certification, and must have been sufficient to adequately test the labor market.  When submitting the request for a reduction in recruitment, the employer should include documentary evidence of their recruitment efforts, including a copy of at least one advertisement.  If recruitment was attempted through an employment agency, union, school, etc., evidence of these attempts should be included.  The employer should include a list of all the responses to the recruitment, as well as the reasons why none of the applicants were hired. 

The SESA will forward this information to the regional Department of Labor office for a determination on the request for reduction in recruitment.  If the request is granted and the application is otherwise in order, it may be approved at this point.  While this makes reduction in recruitment a very attractive option, employers should be aware that there are some risks involved.  For example, recruiting before submission of the application will create a later priority date, resulting in a longer wait for permanent residency.  Also, unless the employer obtains accurate information on the prevailing wage, they may not be paying a high enough wage, thus causing a denial of the application.

Special Handling Labor Certifications

This type of labor certification is used for professors and teachers and colleges and universities, and for aliens of exceptional ability in the performing arts.  It differs from ordinary labor certifications in that the alien worker is shown to be more qualified than any US worker who applied for the position.  The process for teachers and performing artists is by and large the same, although there are some important differences.

For college and university teachers, the school must conduct a competitive recruitment for the position offered to the alien.  The school demonstrates that it meets this requirement by submitting the following to the Department of Labor:

• A statement from the employer, signed by a hiring official, outlining the recruitment procedure, the number of applicants for the position, the specific reason the alien was better qualified than each applicant, and the final report of the selection committee of the school;
• A copy of at least one advertisement for the position run in a national professional journal;
• Evidence of other recruitment;
• A statement of the alien’s educational and professional qualifications and achievements.

The labor certification must be filed within 18 months after recruitment for the position begins.

A special handling labor certification for an alien with exceptional ability in the performing arts must demonstrate both recruitment efforts and that the alien possesses exceptional ability.  This is show by submission of the following:

• A copy of at least one advertisement for the position placed in a suitable national publication, along with a detailed report on the results;
• Evidence that unions traditionally used for recruiting in the performing arts were contacted and unable to provide any worker as qualified as the alien;
• Evidence of the alien’s exceptional ability, such as published material about him or her, playbills, the reputation of organizations that previously employed the alien, the alien’s ability to command a high salary, etc.

Schedule A Labor Certifications

The Department of Labor has determined that there are some job occupations in which there is a chronic shortage of workers.  It has “precertified” a list of specific jobs in which an individual labor certification is not required.  There are two groups within the Schedule A classification. 

Group I consists of professional nurses and physical therapists.  Physical therapists must be fully qualified to take the state physical therapist licensing examination in the state in which they intend to work.  Nurses must have passed the Commission on Graduates of Foreign Nursing Schools Examination or possess an unrestricted license to practice nursing in the state in which they intend to work. 

Group II consists of aliens of exceptional ability in the arts and sciences (excluding the performing arts).  Professors at colleges and universities are also included in Group II.  For qualification in Group II the alien must have at least one year of experience in the field, including the year immediately preceding filing the application. 

Unlike standard labor certifications, Schedule A labor certifications are not filed with the Department of Labor.  Instead, they are filed directly with the INS along with the petition for an immigrant worker.  The INS will adjudicate the Schedule A, making it important to submit evidence necessary to show all requirements for the classification sought.  If the INS denies the Schedule A labor certification, it cannot be appealed as can other labor certification denials.

Graduates of Foreign Medical Schools

Graduates of foreign medical schools, other than those in the EB-1 extraordinary ability category, who are not subject to the labor certification requirement, and those in the EB-2 category for whom the labor certification requirement has been waived, can often be classified in Group II of Schedule A. 

If the position offered involves hands-on patient care, the alien must show that he has passed Parts I and II of the National Board of Medical Examiners Examination or the Foreign Medical Graduates Examination in Medical Science.  He must also possess an unrestricted license to practice medicine in a US state. 

If the position does not involve patient care, the Schedule A labor certification does not require the alien physician to have passed any exam or possess a license to practice medicine in the US.  However, INS regulations to require graduates of foreign medical schools to pass these exams to work as any type of a medical professional.  Because the Schedule A is submitted directly to the INS along with the immigrant petition, the exam must be taken before then.

Schedule B Noncertifications

These are occupations in which the Department of Labor will not issue a labor certification.  The Department has predetermined that there are a sufficient number of able, willing, qualified and available US workers for such positions, and that allowing foreign nationals to take such positions will adversely affect working conditions of US workers similarly situated. 

As a general rule the occupations listed on Schedule B are unskilled and require little or no training or education.  There is generally high turnover, low wages, long hours and poor working conditions in the listed occupations. 

In some situations a waiver can be obtained it the employer can show the Department of Labor that there is in fact no available US worker.  These waivers are difficult to obtain and are rarely given.

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