ALIEN EMPLOYMENT CERTIFICATION
Alien Employment Certification (“AEC”) is a preliminary step in obtaining employment-based permanent
resident status. Most employment based immigrant visas are made available on the basis of an actual job
offer by a U.S. employer to a foreign national. The foreign national may already be in the United States
performing the job in nonimmigrant visa status.
In order to protect U.S. workers from unfair competition for available jobs within certain professional
categories, a sponsoring employer must demonstrate to the U.S. Department of Labor (“DOL”) that the
employment of a foreign worker will not adversely affect the wages and working conditions of similarly
employed U.S. workers. The employer must further demonstrate through documented recruitment efforts
that it has conducted a good faith search for U.S. workers to fill the position before it can be offered on a
regular, long-term basis to a foreign national. If no qualified and available U.S. workers are found, the
DOL will issue a certification that clears the way for the employer and the foreign national to proceed to
the next step in the permanent residence process through the filing of an immigrant visa petition with the
United States Citizenship and Immigration Services* (“USCIS”).
In order to comply with DOL requirements to conduct good faith recruitment and to meet prevailing wage
and working condition standards, the employer must file Form ETA 750A, stating the following:
1.
Name, address and tax I.D. number of the sponsoring employer;
2.
Job title;
3.
Job description;
4.
Minimum education and experience requirements to assume the job’s responsibilities at
the time of the foreign national’s initial hire for the position;
5.
Salary offer;
6.
Work hours;
7.
Name, address and visa status of the foreign national;
8.
Title of the foreign worker’s immediate supervisor; and,
9.
Information indicating the number of workers supervised by the foreign worker.
The foreign worker concurrently files Form ETA 750B and supporting documentation setting forth his or
her qualifications for the job.
Reduction in Recruitment (“RIR”) Processing of AECs
In order to qualify for RIR a company must carry out recruitment in the local market for a period of six
(6) months prior to the filing of the AEC. Through this process, they test the market for U.S. workers who
may be ready, available, and qualified to fill the position seeking certification. Recruitment is typically in
the form of print ads, Internet advertisements and journals other customary forms of recruitment, and the
like.
In addition, the employer must post a notice of the availability of the position to be certified as its
worksite for ten (10) calendar days.
*
Formerly, the “benefits” component of the Immigration and Naturalization Service
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Resumes received in response to the recruitment efforts must be evaluated only with respect to the stated
minimum requirements. It is therefore critical to draft the ad and posting with care so that actual
requirements are not overlooked.
WHEN SHOULD THE EMPLOYER CONDUCT AN INTERVIEW?
Applicants who meet the minimum requirements may not be disqualified because they are less or more
qualified than the foreign worker. As a good faith effort to recruit U.S. workers, the employer must
conduct a follow-up telephone or on-site interview within a reasonable time with any applicant whose
resume raises a reasonable possibility that he or she may be qualified.
Applicants who state on their resumes or in the course of the interview that they are temporary visa
holders may be disqualified on that basis alone, since they are not U.S. workers. U.S. permanent
residents or green card holders are considered to be U.S. workers. In interviewing job applicants, the
employer representative must adhere to anti-discrimination standards in discussing an applicant’s visa
status or nationality.
Please see our memoranda on Pre-Employment Interview Guidelines, F-1 and J-1 Student Recruitment,
and I-9 Verification for further reference on the interviewing process.
PRACTICE ADVISORY: DOL FOLLOW-UP
Employers should keep in mind that some applicants who are
interviewed may receive a questionnaire from the Department of Labor
to determine whether the interview was conducted properly
Drafting and Documentation
The forms and advertisement must be drafted with attention to accuracy and completeness. Before filing
the forms or placing the advertisement, the company should be sure that the foreign worker can document
his or her background with respect to the stated minimum education and experience requirements. This
documentation may take the form of transcripts and letters from university and/or previous employers
representatives who can vouch for the individual’s background. The documentation must be specific with
respect to each requirement for the position. The initial preparation and documentation of the AEC prior
to filing or ad placement can therefore take from two weeks to more than two months, depending upon
the availability of the documentation.
Form ETA 750 Specifics
The key parts of Form ETA 750A are Items 13, 14 and 15 which address the job description and the
education and experience background required to perform the job.
Item 13 - Job Duties
The job description should be moderately detailed and give a sense of the job level. Please avoid
abbreviations and spell out acronyms. Keep in mind that the job description should remain current
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throughout the AEC and permanent residence processing period, as it refers to the job to be offered the
foreign worker at the time he or she obtains permanent residence status.
Item 14 - Education and Experience
Employers must state the minimum education and professional experience required to perform the job.
Keep in mind that the SWA and DOL will use this information, along with the job title and description, to
determine the prevailing wage for this position.
Item 15 - Special Requirements
The term “special requirements” refers to the particular skill set required to carry out the job functions.
Again, these must be the minimum requirements. While the special requirements may not be tailored to
the foreign worker’s background, it is essential that he or she meets the minimum requirements and be
able to specifically document each one.
Further, the application generally may not require any experience background or skills which the foreign
worker obtained (1) as a result of current employment with the sponsoring company or (2) as a result of
employment with a foreign affiliate of the sponsoring company.
PRACTICE ADVISORY: CHANGE OF JOB FUNCTIONS
A change in job functions that leads to a material change in the job
description can nullify an AEC. Employers must therefore anticipate to
the best of their abilities any future changes before filing the AEC.
Failure to do so may result in the employee having to re-start the green
card process.
ADDITIONAL ISSUES AND QUESTIONS
Visa status review
Before initiating the AEC process, employers should carefully review the visa status of the foreign
worker. Most AEC applications are filed on behalf of foreign nationals who are currently performing the
job in nonimmigrant status. Because the AEC process may take up to twelve months or more, employers
should ascertain the length of time that the foreign national has already been in the United States in the
nonimmigrant visa to ensure that the process can be completed before the foreign national’s total visa stay
period is exhausted. Should the employee be required to leave the United States in such a situation,
however, the employer is not precluded from completing the AEC and permanent residence process on
his or her behalf.
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GUIDELINES FOR MANAGERS IN INTERVIEWING CANDIDATES IN RESPONSE TO RECRUITMENT IN
CONNECTION WITH A LABOR CERTIFICATION APPLICATION
The DOL has set out general guidelines for reviewing resumes of U.S. workers submitted in connection
with recruitment carried out by an employer that will file an AEC. This memo will summarize the
obligations of employers in this critical stage of the AEC process.
The DOL requires that employers consider each applicant’s qualifications, abilities and availability for the
position. All seemingly qualified applicants should be contacted, as soon as possible. The defines
timely contact as fifteen days after receipt of the resumes. Employers must review the qualifications
of each applicant and compare them to the minimum qualifications of the position reflected on Form ETA
750A for example:
1.
Does the applicant possess the required academic degree or, if not, can his or her
academic degree and/or professional experience be considered roughly equivalent to the
required degree?
2.
Does the applicant possess the required professional experience?
3.
Does the background of the applicant meet each of the special requirements listed in the
advertisement?
Each candidate who cannot be definitively disqualified on the face of the resume must be interviewed. In
conducting an interview, keep in mind that direct questions regarding visa status or nationality are not
permissible under U.S. employment law. However, the following information may be solicited:
1.
Is the applicant able to immediately accept permanent employment in the United States?
2.
Does the applicant possess all of the stated minimum qualifications?
3.
Where the applicant asserts that he or she possesses the stated minimum qualifications,
questions may be asked to confirm the same.
The DOL routinely sends questionnaires to all applicants responding to advertisements placed in
connection with AEC applications. The questionnaire informs the applicant that the advertisement was
placed in connection with an AEC application. In addition, it inquires whether the applicant was
interviewed and requests the company’s reasons for rejecting the applicant.
If the candidate does not respond to telephone calls or messages, the employer must make further efforts
to contact the candidate and carefully document the same.
The employer must further document its determination either from a review of the resume and/or from an
interview, whether the candidate is qualified for the position.
It is unlawful for the foreign worker who is the beneficiary of the AEC application to be involved in the
recruitment, interview or resume evaluation process.
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PRACTICE ADVISORY: 5TH YEAR FOR H-1BS
An H-1B nonimmigrant is eligible for an extension of H-1B status
beyond the 6-year maximum period if, on the 6 year anniversary,
365 days have passed since the individual began the green card
process, provided that the individual has an approved labor
certification (if required) and a pending I-140 petition or adjustment of
status application. Please note that the I-140 petition must be filed no
later than the 6 year anniversary of the initial entry in H-1B status. The
H-1B status may be extended in one-year increments until a final
decision is made regarding the alien’s adjustment of status application.
Employers should not file AEC applications on behalf of foreign nationals who are not in lawful status or
who are working without authorization. Any questionable visa information reflected on the ETA 750
forms will be forwarded to USCIS authorities who may initiate deportation proceedings against the
foreign national. Individuals or companies who engage in unauthorized employment of foreign nationals
are also subject to government sanctions.
Wages and working conditions
Sponsoring employers are obliged to file statements with respect to wage and working conditions
standards at the company. In addition, the job offer and salary figure must be posted on the company’s
premises. The posting includes a statement that any person may provide documentary evidence bearing
on the application to the SWA or DOL.
Are there job flexibility limitations?
As stated above, employment-based visas are available on the basis of an offer of employment. The
position must be specific and it must be available at the time the foreign national applies for the green
card. Therefore, the foreign worker cannot be transferred out of the position described in the
advertisement while the AEC and permanent residence application process is pending. In addition,
because the recruitment process tests the local employment market, the employee cannot be relocated out
of the geographical area while the AEC and permanent residence application process is pending.
Are there any travel restrictions?
During the processing of an AEC application, foreign workers may freely travel in and out of the United
States. H-1B and L-1 workers may not be denied issuance of the visa stamp solely on the basis of the
intent to immigrate to the U.S. However, for foreign nationals in other classifications, entering the United
States while an AEC is pending could raise concerns regarding the applicant’s intent to remain in the
United States temporarily. Please contact our office should you have further questions in this regard.
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What is the next step?
Once an AEC is interfiled by the DOL, the employer can file an Employment based Immigrant Petition
(Form I-140) with the USCIS. The petition will state the employment category under which the
individual qualifies and will include the original AEC.
PRACTICE ADVISORY: EMPLOYMENT BASED CATEGORIES
Prior to the American Competitiveness in the 21st Century Act
(“AC21”), visa availability was an issue for nationals of China and India
and the wait time was much shorter for individuals in EB-2 category.
AC21 eliminated the visa backlog for China and India and, as a result,
visas are available to all employment based categories.
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PROCESSING ALIEN EMPLOYMENT CERTIFICATION APPLICATIONS
(REDUCTION IN RECRUITMENT)
Company/manager
describes job and
minimum requirements.
Company reviews
resumes and interviews
applicants.
When ad is approved
SWA places job opening
into its internal job match
system.
SWA forwards AEC to
DOL.
Legend
SEO- State Employment Office
DOL – Department of Labor
Foreign worker
describes and
documents academic
qualifications and
experience.
Company places ad in
newspaper or journal
and posts notice on
company premises.
AEC application,
recruitment results and
evidence of foreign
worker’s qualifications
are filed with SWA.
Within 5 months SWA
performs initial review of
AEC. SWA may request
clarification (Assessment
Notice).
Company reviews
resumes and interviews
applicants referred
through job match
system.
Company
recruitment
SWA.
DOL certifies AEC. [If
DOL issues NOF,
company response due
within 30 days.]
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forwards
results to
Company files immigrant
visa petition with USCIS.
USCIS approval within 2
months foreign worker
may apply for permanent
residence in U.S. or
abroad.
PROCESSING ALIEN EMPLOYMENT CERTIFICATION APPLICATIONS
(TRADITIONAL)
Foreign worker
describes and
documents academic
qualifications and
experience.
Attorney files AEC
with State Workforce
Agency. (SWA)
SWA reviews ad and
may request
additional
information
(Assessment Notice)
SWA approves ad and
recommends publication.
Company places ad in
newspaper and posts
in-house. SWA posts
job opening in Job Match
System.
(30 days)
Company evaluates
resumes and interviews
applicants.
Attorneys send resumes
and recruitment results
to SWA.
SWA forwards AEC
to DOL for
adjudication.
(2 months)
755731
v2/SF
Company/manager
g74j02!.DOC
describes job and
minimum requirements.
DOL certifies AEC. [If
DOL issues NOF
company response due
within 30 days.]
Legend
SWA- State Workforce Agency
DOL – Department of Labor
Company files immigrant visa petition with
USCIS. Upon approval foreign worker and
family may apply for permanent residence in
U.S. or abroad.
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AEC – Alien Employment Certification
NOF – Notice of Findings