• VISIT
  • WORK
  • IMMIGRATE

    • Visa Types » Green Card » About

    Memorandum on Labor Certification

    This is to explain the purpose of the labor certification procedure, and to outline the steps in the procedure in which you will be involved. The success of the labor certification application depends on your active participation and cooperation. The employer submits the application, and it is the employer who must sign the application attesting to its accuracy. Therefore, it is important for you to understand fully the contents of the application and how the applications, and the procedures following its submission, relate to the purposes of labor certification.

    The labor certification procedure is intended to assure that you are not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that you have not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers. If the labor certification procedure locates any U.S. workers who meet your minimum requirements (education, experience, training) for the position, you will not be permitted to obtain permanent residence for the foreign national.

    The Department of Labor (DOL) requires you to approach the process as though you are willing to hire a U.S. worker if one is qualified and available, although it will not force you to hire such a worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating U.S. job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.

    One requirement of the DOL is particularly worth explanation: that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification. This requirement is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job's minimum requirements. Although the recruitment procedure required of employers by the DOL after the application is filed has many similarities to the recruitment procedures used by employers, it is the distinction just mentioned that makes the two processes very different, and explains why aspects of the application procedure seems peculiar to many employers.

    Most employers already have established 'minimum" requirements for the job. These requirements for most employers are established in vague or broad terms and are set at a basic level, in order to attract the maximum number of job candidates, giving the employer great flexibility in choosing the most qualified person among those candidates. The requirements are set knowing that the person actually hired will have some combination of qualifications beyond the employer's stated requirements, making that person the most qualified out of the applicants. It is virtually a certainty that a person who just meets the stated requirements will not be hired.

    The employer, however, does not need to define more carefully the actual minimum requirements below which a candidate would not be hired, because the hiring process will turn up the most qualified candidate; it makes no difference to the employer how many of the other candidates could actually have been hired. Another reason for not defining the actual minimum requirements is that there are many alternative combinations of qualifications that the employer is willing to consider in filling the job, and by not defining those alternatives in detail, the employer does not limit the applicant pool and has more flexibility in choosing the best candidates.

    On the other hand, the DOL requires that any U.S. job applicant who meets the minimum requirements for the job be considered qualified, and it is this standard which governs whether the labor certification application can be approved. Therefore, for purposes of this application it is very important to define the threshold point above which the employer is actually willing to hire any job applicant-that is, the employer's actual minimum requirements for the job. As you can see, what the DOL means by minimum requirements is quite different than the requirements set by employers in their own normal hiring procedures. The employer must carefully define the job duties, and think through all of the alternative combinations of experience, education, training, and special skills with which job applicants can perform those job duties.

    These are the "minimum requirements" that must be included by the employer in the labor certification application and which must form the basis of the recruitment that will be conducted after the application is filed. I have explained the DOL requirement in detail because I want you to understand why the job description and minimum requirements we develop for the labor certification application are likely to be more detailed than the description and job requirements you may use in your normal hiring practices. That difference is based on the different purposes and goals of the two procedures.

    Once the application is filed, you will need to be involved in the following steps:
    Next »
    Designed & Developed by: B3 Business Solutions