Step-by-Step Procedures for Labor Certification

The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.

1. Employer Requests Prevailing Wage Determination

Under the new procedures, the first step is for the employer to approach the state workforce agency (SWA) serving the state where its office is located. The employer must request what’s called a “prevailing wage determination” (PWD), which will indicate how much is normally paid to people in jobs equivalent to the one being offered. This information is important because the employer must offer the immigrating worker 100% or more of the prevailing wage.

2. Employer Recruits in the U.S.

Next, the employer can begin recruiting for the job in the United States. (Actually, the employer can start recruiting before this, but must make sure to offer a salary that’s at least as high as the prevailing wage.)

The Department of Labor (DOL) regulations spell out strict rules for recruiting. For starters, the employer must announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the DOL regulations.

3. Employer Files Labor Certification Application Form

If, after the recruiting is done, the employer has not found a qualified, willing, available, and able American to take the job, it can submit the labor certification application to the U.S. Department of Labor (DOL). The application involves completing a ten-page DOL form (ETA-9089), available on the DOL website at www.foreignlaborcert.doleta.gov. No supporting documents need be submitted, though they must be available in case DOL requests them.

The DOL is supposed to make a decision on the labor certification within 45 to 60 days, but often fails to meet this deadline.

Next Step Towards a Green Card

Only after the labor certification is approved can the employer and immigrant proceed forward. First, the employer must file a visa petition on USCIS Form I-140. After the visa petition has been approved, the immigrant must apply for a green card, either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas). For more information, see How to File a Green Card Application.

Exceptions to Labor Certification Requirement

For workers in the following categories, no labor certification needs to be filed before the worker applies for a green card. These exceptions include:

• workers in what is called the “employment first preference” category, including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
• millionaire entrepreneur immigrants (“employment fifth preference”)
• religious workers coming as “special immigrants” (“employment fourth preference”), and
• people whose occupations are listed on “Schedule A,” meaning that the U.S. government recognizes there is a shortage of such workers.