Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
11.8
Alien Labor certification
11.8.1
General overview
11.8.1.1
Parties involved
•
•
Employer
•
Formulates the job description; minimum requirements (education and experience) and wage offered
•
Documents any prior recruitment efforts, if reduction in recruitment or special
handling is being sought
•
Prepares the Form ETA 750 and files it with the appropriate SWA
SWA
The State Workforce Agency (SWA) office having jurisdiction over the place of
employment does the following:
•
•
Reviews the minimum requirements for the job and wage offered
•
Gives employer chance to amend job requirements and wages it challenges
•
Oversees employer recruitment effort, if employer has not done so or makes an
initial determination of whether the employer’s previous efforts were acceptable.
•
Sends the application to the regional office of the U.S. D.O.L.
Regional Office
The Regional Office of the D.O.L. Employment and Training Administration does
the following:
11.8.1.2
•
Evaluates the employer’s application and recruitment evidence forwarded by
the SWA
•
If questions arise, issues a Notice of Findings to the employer, and then reviews
employer’s response
•
Approves or denies the labor certification
Form ETA 750
Form ETA 750 is the basic application for labor certification. It consists of two parts:
1.
2.
Form ETA 750 Part A, which is completed by the employer and delineates
the job duties and the minimum job requirements in great detail;
Form ETA 750 Part B, which is completed by the employee and constitutes
his or her official application for the job.
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Practice note
Form ETA 750 as
a key point of
departure
The information requested on Form ETA 750 A-B, the labor certification application form, is rooted in specific laws and policies. Understanding these laws and policies is essential to
properly completing the form and, ultimately, preparing a successful application. From a practical standpoint, Form ETA 750
A-B is the Department of Labor’s key point of departure in adjudicating the labor certification.
Practice note
PERM program
plans to change
labor certification
process
11.8.1.3
On May 6, 2002, the Department of Labor published a proposed
rule that would implement the long-anticipated “PERM” program. The 60-day public comment period ended July 5, 2002. At
the time this version of the Manual went to press, the rule had
not been finalized, but had been sent to OMB for final review.
See AM Chapter 13 for highlights of the proposed changes.
Key labor certification issues
Six key issues permeate any labor certification case. These are:
Practice note
6 key alien labor
certification
issues
1.
2.
3.
4.
5.
6.
11.8.1.4
How a “prevailing wage” is determined and applied to your particular case
by the SWA
The difference between a job’s duties and a job’s minimum requirements
How the alien’s qualifications interface with the job’s stated minimum
requirements
What constitutes an adequate recruitment for the job in question
The standards for rejecting a U.S. worker during recruitment and how to
document a recruitment effort
The importance of filing deadlines and timely action
Types of labor certifications
An application for “individual alien labor certification” may be filed using one of
three procedures:
1.
2.
3.
11 - 30
Standard processing
Reduction in Recruitment (RIR) processing
“Special Handling” processing, available only for positions requiring college or university classroom teaching duties
AM cross-reference
The flow of each of these procedures is outlined at Resource 11-f on page 1131.
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
11.8.1.5
Processing times
Processing of both standard and RIR cases can be long, and vary by region. DOL
local and regional office processing times, along with the USCIS processing times
for the eventual I-140 petition and adjustment of status application, must be taken
into account when planning the permanent residence case, and in setting the
expectations of the employee and his or her employing department.
Between standard and RIR cases, RIR is processed more quickly. Some DOL offices
process Special Handling cases in the order of receipt as if they were RIR cases;
others process them in the order of receipt as standard processing cases.
The current processing times of standard processing and
RIR cases are posted and updated by DOL at this Web site:
http://workforcesecurity.doleta.gov/foreign/times.asp
Resource 11-f
Flowchart: The 3 labor certification routes
Standard
RIR
Special Handling
No more than 6 months before filing ETA 750 AB with SWA, employer conducts recruitment for
position using “industry-standard” advertising
channels. Develops documentation detailing
nature and results of recruitment effort.
No more than 18 months before filing ETA 750
A-B with SWA, employer selects alien as bestqualified candidate, using the institution’s
normal “competitive recruitment” policies and
procedures for teaching faculty.
|
Employer files ETA 750 A-B with SWA.
Employer files ETA 750 A-B with SWA, includes
required documentation of recruitment efforts and
results.
Employer files ETA 750 A-B with SWA,
includes required documentation describing the
competitive recruitment process and results.
SWA reviews minimum requirements and wage
offered.
SWA reviews minimum requirements and wage
offered
SWA reviews minimum requirements and
wage offered.
SWA forwards case to DOL Regional Office for
certification decision.
SWA forwards case to DOL Regional Office for
certification decision.
SWA forwards case to DOL Regional Office
for certification decision.
DOL Regional Office approves the application, or
issues “notice of findings” (NOF) specifying
deficiencies. If employer fails to adequately
respond to NOF, denial is issued.
DOL Regional Office approves the application,
issues a “notice of findings,” (NOF) specifying
deficiencies, or remands the case to the SWA for
further recruitment.
DOL Regional Office approves the application,
or issues “notice of findings” (NOF) specifying
deficiencies. If employer fails to adequately
respond to NOF, denial is issued.
SWA instructs employer to advertise and conduct
30-day recruitment. Employer places ad, posts
internal notice, and conducts recruitment. SWA
places “job order” in SWA system. Applicants
responding to ad send resumes to SWA, who then
forwards them to employer. Within 45 days
following the 30-day recruitment period employer
forwards recruitment results to SWA.
If certification approved, employer includes certified application with I-140 filed with DHS under EB-2 or EB-3 preference categories.
If priority date is current, alien applies for adjustment of status (concurrently with I-140 or later) or immigrant visa (if I-140 approved).
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
11.8.2
The prevailing wage requirement
Resource 11-g
Name of Job Title
ETA 750 A items 10-12: Wages and work hours
10. Total Hours Per Week
a. Basic
b. Overtime
11. Work
Schedule
(Hourly)
a.m.
p.m.
12. Rate of Pay
a. Basic
$
per
b. Overtime
$
per hour
The employer must specify the wage to be offered for the job in item 12 of Form
ETA 750 A. “Working conditions” such as hours per week of work plus the work
schedule are listed at items 10 and 11.
The wage offered must meet or exceed the geographic area’s “prevailing wage” for
the occupation. It is the job of the SWA to determine the “prevailing wage;” and that
is one of the first things the SWA does after receiving an employer’s labor
certification application, and compare it to the wage offered by the employer.
11.8.2.1
The prevailing wage 95% (5%) rule
Because prevailing wages are based on averages, DOL will accept as meeting the
prevailing wage requirement any wage that is at least 95% of the prevailing wage as
determined by the SWA.
20 C.F.R. § 656.40(a)(2)(i)
The “95% rule” does not apply, however, when the occupation is unionized. For
unionized positions, the wage set forth on the labor certification forms must equal
100% of the union wage.
11.8.2.2
Sources of authority on prevailing wage determinations
When determining the prevailing wage, SWAs should follow DOL regulations at 20
C.F.R. § 656.40 as well as the policies and procedures set forth in DOL field
guidance memos called General Administration Letters (GALs) and Training and
Employment Guidance Letters (TEGLs).
The most important GALs for prevailing wage determinations are:
11 - 32
•
GAL 2-98, and Attachment (October 31, 1997) with GAL 2-98 change 1, and
Attachments (May 26, 1998), and GAL 2-99 (April 23, 1999). AMDOC#
200401002.
•
GAL 1-00, and Attachments (May 16, 2000) [AMDOC# 200207013]
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Practice note
Determining the
prevailing wage
before filing
An employer does not have to wait until it files the labor certification to find out what the prevailing wage will be; it can also
submit a prevailing wage request form to the SWA before filing
the labor certification application.
To determine the prevailing wage, the SWA will examine the employer’s job
description and minimum requirements, and then consult the Occupational
Employment Survey (OES) to determine the prevailing wage for that occupation in
the area of employment. The job titles listed in the OES survey are linked to job
descriptions catalogued in the Dictionary of Occupational Titles (DOT).
11.8.2.3
Wage levels I and II
A prevailing wage determination based on the OES data will only distinguish
between two levels of expertise: wage level I and wage level II. The job factors
taken into account in assigning a wage level are defined in Resource 11-h on page
11-33.
Resource 11-h
Definitions of OES wage levels I and II
Level One: “Beginning level employees who have a basic
understanding of the occupation through education or experience. They perform routine or moderately complex tasks that
require limited exercise of judgment and provide experience
and familiarization with the employer's methods, practices,
and programs. They may assist staff performing tasks requiring skills equivalent to a level II and may perform higher
level work for training and developmental purposes. These
employees work under close supervision and receive specific
instructions on required tasks and results expected. Work is
closely monitored and reviewed for accuracy.”
Level Two: “Fully competent employees who have sufficient
experience in the occupation to plan and conduct work
requiring judgment and the independent evaluation, selection, modification and application of standard procedures
and techniques. Such employees use advanced skills and
diversified knowledge to solve unusual and complex problems.
They may supervise or provide direction to staff performing
tasks requiring skills equivalent to a level I. These
employees receive only technical guidance and their work is
reviewed for application of sound judgment and effectiveness
in meeting the establishment's procedures and expectations.”
GAL 2-98, Attachment, Paragraph H
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Practice note
If the position
requires a Ph.D.,
will a wage level
II determination
be issued
automatically?
A job’s degree requirement is not in itself a determinant of
whether the SWA will classify a position as Level I or Level II.
For example, if the occupation normally requires a Ph.D. for
entry into the profession (e.g., university faculty), an entry-level
faculty position should be classified at Level I. On the other
hand, if entry into the occupation normally requires a Bachelor's
degree, but the specific job needs someone with a Master's, then
a Level II determination will be made.
GAL 2-98, Attachment, Paragraph H
On a practical level, the two-level wage determination system will yield averages
only for “entry” and “all others.” Getting an accurate prevailing wage determination
for a mid-level position may be difficult in this system, since Level II wages will be
an average of the salaries not only of mid-level workers, but of very experienced
workers as well.
11.8.2.4
Challenging the SWA’s prevailing wage determination
The wage determination of the SWA may need to be challenged if you believe:
1.
2.
11.8.2.4.1
The SWA incorrectly classified the position as wage level II rather than
wage level I; or
The prevailing wage determination does not accurately reflect the wages
paid by the industry in the area.
Addressing an incorrect position classification
If you believe that the SWA incorrectly classified the position as wage level II rather
than wage level I, you will have to send a rebuttal letter to the SWA requesting
reclassification. This letter should provide a detailed explanation as to why the
employer feels the classification is incorrect. If possible the letter should steer the
SWA to a more appropriate classification.
11.8.2.4.2
Addressing the accuracy of the underlying wage data
If you believe that the OES wage survey data does not accurately reflect the area
wages for the position, the only option is to submit to the SWA another wage survey
that you do believe gives a more accurate portrayal. Any survey submitted for this
purpose must meet the criteria listed at Resource 11-i on page 11-35. The SWA is
not bound to accept an employer-provided survey, and if it does, it will cover that
particular case only.
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NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Resource 11-i
1.
2.
3.
4.
5.
6.
7.
Criteria for non-OES wage surveys
The data must have been collected within 24 months
The survey must have been published within 24 months
The survey must reflect the area of intended employment
The employer job description must adequately match the survey job description
For institutions of higher education, their related or affiliated nonprofit entities, nonprofit research organizations and government research organizations, the survey may be limited to employers in that group of industries. For
all other employers, the survey must be across industries that employ workers in the occupation, and cannot take into account the “nature” of the
employer (e.g. for profit v. non-profit).
The wage determination must be based on an arithmetic mean
The survey must identify a statistically valid methodology that was used to
collect the data.
GALs 2-98 and 2-98 change 1
The employer-provided survey need not conform with the two-tiered wage levels of
the OES survey. A survey that includes more skill levels can be used as long as the
employer uses the wage determination for the skill level that most closely represents
the level of experience or responsibility in the job offer.
11.8.3
GAL 1-00
The job offer
The job offered to the alien must be:
Located in the United States
Permanent - the employer must intend to employ the alien for the foreseeable future. The position cannot have a specified end date and cannot be
seasonal or intermittent
Full-time
A bona fide job opportunity
Offer prevailing wages and working conditions
20 C.F.R. § 656.3, definitions
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
11.8.3.1
Job descriptions
Resource 11-j
ETA 750-A, item 13: job duties.
13. Describe Fully the job to be Performed
(Duties)
The duties described at item 13 on Form ETA 750-A must accurately reflect the
essential functions, duties and responsibilities of the position.
The job description should also indicate the level of supervision to be exercised over
or by the prospective worker. There is a separate area to enter specific information
about how many employees the position supervises, and the title of the person to
whom the position reports, at items 16 and 17.
Practice note
Notes on the
wording of the
job description
The job description describes the duties of the job, not the alien
employee or other incumbent. The wording of the job description placed at item 13 will also be the basis of the advertisement
that will be required as part of the recruitment requirement, so
the description should be worded with this in mind.
Ultimately, DOL will try to fit the employer’s job description into a pre-defined
occupational classification set forth in the Dictionary of Occupational Titles (DOT).
DOT job descriptions are often quite general, encompassing many different job titles
that employers usually think of as being distinctly separate from each other.
Examine, for example, the DOT job description for “faculty member,” reproduced
below at Resource 11-k on page 11-37.
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NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Resource 11-k
Example of a DOT occupation description
090.227-010
FACULTY MEMBER, COLLEGE OR UNIVERSITY (education)
Conducts college or university courses for undergraduate or
graduate students: Teaches one or more subjects, such as
economics, chemistry, law, or medicine, within prescribed
curriculum. Prepares and delivers lectures to students. Compiles bibliographies of specialized materials for outside
reading assignments. Stimulates class discussions. Compiles, administers, and grades examinations, or assigns this
work to others. Directs research of other teachers or graduate students working for advanced academic degrees. Conducts research in particular field of knowledge and
publishes findings in professional journals. Performs
related duties, such as advising students on academic and
vocational curricula, and acting as adviser to student organizations. Serves on faculty committee providing professional consulting services to government and industry. May
be designated according to faculty rank in traditional hierarchy as determined by institution's estimate of scholarly
maturity as Associate Professor (education); Professor (education); or according to rank distinguished by duties
assigned or amount of time devoted to academic work as
Research Assistant (education); Visiting Professor (education). May teach in two-year college and be designated
Teacher, Junior College (education); or in technical institute and be designated Faculty Member, Technical Institute
(education). May be designated: Acting Professor (education); Assistant Professor (education); Clinical Instructor
(education); Instructor (education); Lecturer (education);
Teaching Assistant (education).
GOE: 11.02.01 STRENGTH: L GED: R6 M5 L5 SVP: 8 DLU: 81
Practice note
DOT definition
trailer codes
The definition trailer that follows the DOT job description provides information about the education/training/experience normally associated with the position. Here’s the code key:
Code
Definition
GOE
Guide for Occupational Exploration. Codes used by state employment
agencies to assess the interests, skills and potential of job applicants to
succeed in this occupation.
Strength
Physical demands - reflects the overall strength required for the position,
using one of five ratings: Sedentary, Light, Medium, Heavy, Very Heavy
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Code
Definition
GED
General Educational Development embraces those aspects of education
(formal and informal) which are required of the worker for satisfactory job
performance. The scale is composed of three divisions (reasoning Development, Mathematical Development and Language Development). The
scale ranges from 1-6 for these categories with 6 indicating the highest
level of development.
DLU
Date of Last Update
SVP
Specific Vocational Preparation. Amount of combined education and
experience required to function in the job.
A more detailed description of each of these definition trailers can be found in
Appendix C of the DOT. For practical purposes, the only one of great significance is
the SVP, discussed at AM § 11.8.3.2.1 on page 11-39.
Job requirements
11.8.3.2
Resource 11-l
ETA 750-A, items 14 and 15: job requirements
14. State in detail the MINIMUM education, training, and experience for a
worker to perform satisfactorily the job duties described in item 13
above.
Grade High
College
College Degree Required
EDUSchool School
CATION
(Enter
Major Field of Study
number of
years)
TRAINING
No. Yrs.
No. Mos.
Related
Occupation
Number
Mos.
Yrs.
Mos.
Job Offered
EXPERIENCE
Yrs.
15. Other Special Requirements
(specify)
Type of Training
Related Occupation
(specify)
At items 14 and 15 of Form ETA 750-A, an employer must specify the minimum
requirements for the job, including education, training, experience and other special
requirements. An employer must make sure that the requirements it specifies are its
actual minimum requirements and that it has not hired the alien or other workers
with less training or experience for jobs similar to the one offered.
BALCA Benchbook, Chapter 1
Essentially, the employer needs to do a two step evaluation to determine if the
requirements for the job truly are the minimum requirements:
1.
2.
11 - 38
Has the employer ever hired anyone (including the alien) with less experience?
Is training for a lesser-qualified individual not feasible?
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Practice note
Start with the
employer’s own
internal position
description, if
there is one.
11.8.3.2.1
An employer should begin by looking at its own official job or
position description. Straying too far from that description may
have internal institutional implications. Bringing the official
responsible for the official institutional job description into the
picture can avoid later difficulties.
Specific Vocational Preparation (SVP)
The Department of Labor relies on an occupation’s Specific Vocational Preparation
(SVP) level to determine the total amount of education, training, and experience that
can reasonably be required for a position. The DOL Technical Assistance Guide
describes the SVP as,
Authority cite
Technical
Assistance
Guide, pg. 131
... a guide to the normal amount of time required to learn
the techniques, acquire information, and develop the
facility needed for average performance in a specific
job… The training may be acquired in a school, work,
military, institutional, or a vocational environment. It
does not include orientation training of a fully
qualified worker to become accustomed to the special
conditions of any new job. Specific vocational training
can include training received in an educational setting,
apprenticeships, on-the-job training, and experience
gained in other jobs.
The SVP level assigned to a given job is found in the Dictionary of Occupational
Titles (DOT) entry associated with the job.
Practice note
example
For example, referring back to AM Resource 11-k on page 1137, you will see that the occupation “Faculty Member” has an
SVP of “8.” Using the table at AM Resource 11-m on page 1140, you find that an occupation with an SVP of “8” can require
from 4 to 10 years of combined training, education, and experience.
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Resource 11-m
SVP level
SVP level conversion table
Total training, experience, and education required
1
Short demonstration only
2
Anything beyond short demonstration up to and including 1 month
3
Over 1 month up to and including 3 months
4
Over 3 months up to and including 6 months
5
Over 6 months up to and including 1 year
6
Over 1 year up to and including 2 years
7
Over 2 years up to and including 4 years
8
Over 4 years up to and including 10 years
9
Over 10 years
DOL ETA Web site at http://edc.dws.state.ut.us/svp.asp
Practice note
How bachelors &
higher degrees
are counted
towards the SVP
Years of actual education are not counted on a 1:1 ratio. Rather,
the Department of Labor will attribute SVP years only for the
part of the degree that specifically prepares the individual for the
occupation in question. Although individual cases may differ,
DOL has established general guidelines for its officers to use,
based on a DOL survey of educational institutions. Those DOL
guidelines are set forth in the table below, at Resource 11-n on
page 11-40.
Resource 11-n
DOL table of SVP equivalencies for college degrees
DEGREES
General Associate’s
0
Specific Associate’s
2
Baccalaureate
2
Master’s
4 (2 for bachelor’s + 2 for master’s)
Doctorate
7 (2 for bachelor’s + 2 for master’s + 3 for doctorate)
11.8.3.2.2
SVP
ETA Field Memorandum 48-94, attachment item 7 (1994)
Unduly restrictive job requirements
If the minimum requirements listed by the employer exceed the upper range of the
SVP code assigned to that occupation, or if the requirements appear to be unduly
tailored to the credentials of the alien, D.O.L. may infer that they are either unduly
restrictive or that they do not accurately reflect the actual minimum requirements.
11 - 40
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
DOL considers requirements to be unduly restrictive if they demand skills,
knowledge, abilities, and conditions of employment which are not normally required
to satisfactorily perform work in the occupation.
20 CFR § 656.21(b)(2)
DOL will deny an application for alien labor certification that specifies “unduly
restrictive” requirements, unless the employer can prove that the requirements arise
out of “business necessity,” as discussed below at AM § 11.8.3.2.3 on page 11-41.
Practice note
Examples of
unduly restrictive
requirements
Examples of requirements often considered to be unduly restrictive include:
•
•
•
•
•
•
•
Required proficiency in a language other than English.
Years of experience required to perform the job in excess of
those specified by the Specific Vocational Preparation
(SVP) supplement to the DOT.
College degrees required for jobs where technical school or
on-the-job training is all that has been previously been
required by the employer or in the industry.
A requirement that household domestic service workers live
on the employer's premises.
Combining jobs into one that is normally performed by
more than one worker.
Knowledge or skills required that cannot be obtained in the
United States.
Combining duties into one job, such as engineer-pilot, is
acceptable if the employer can document that:
- It has normally employed persons for combined duties, or
- Workers customarily perform combined duties in the area of intended
employment, or
- The combined duties are a business necessity.
11.8.3.2.3
20 CFR § 656.21(b)(2)(ii)
Business necessity
Requirements that would normally be deemed unduly restrictive can sometimes be
justified if an employer convincingly establishes that the requirements arise out of
“business necessity.” To constitute business necessity, such requirements must be
“overriding” or “essential” for the safety or operation of the business. This standard
does not include qualifications that are merely a preference or a convenience.
The Board of Alien Labor Certification Appeals (BALCA) issued a decision in
Matter of Information Industries, Inc, which created a two-prong test for business
NAFSA Adviser’s Manual (2004 release)
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
necessity. To show business necessity under Information Industries, an employer
must prove the following:
Test for business
necessity
1.
2.
Are they reasonably related to tasks to be performed; and
Does the absence of the requirement undermine the essence of the business
operation.
Matter of Information Industries, Inc. 88-INA-82 (BALCA Feb.
9, 1989)
•
Documenting business necessity
If a position does require special requirements, then a detailed letter from
the employer explaining those requirements and their necessity, and any
corroborative evidence that aids the assertion, should accompany the filing of
the labor certification. This is especially important if the position seems to
combine two different sets of job duties.
11.8.4
Employer certifications
Items 23 and 24 of Form ETA 750-A contain important certifications and
declarations, to which the employer agrees by signing the form.
Resource 11-o
23. EMPLOYER CERTIFICATIONS
By virtue of my signature below, I HEREBY CERTIFY the following conditions of employment.
a.
I have enough funds available to pay the wage
or salary offered the alien.
b.
The wage offered equals or exceeds the pre-
e.
The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age,
sex, religion, handicap, or citizenship.
vailing wage and I guarantee that, if a labor certification is granted, the wage paid to the alien when
the alien begins work will equal or exceed the prevailing wage which is applicable at the time the
alien begins work.
c.
f.
The wage offered is not based on commissions,
bonuses, or other incentives, unless I guarantee
a wage paid on a weekly, bi-weekly, or monthly
basis.
g.
The job opportunity is not:
(1)
Vacant because the former occupant is on
strike or is being locked out in the course of
a labor dispute involving a work stoppage.
(2)
At issue in a labor dispute involving a work
stoppage.
The job opportunity's terms, conditions and occupational environment are not contrary to Federal,
State or local law.
d.
I will be able to place the alien on the payroll
on or before the date of the alien's proposed
entrance into the United States.
h.
The job opportunity has been and is clearly open to
any qualified U.S. worker.
24. DECLARATIONS
DECLARATION
OF
EMPLOYER
11 - 42
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury the foregoing is true and correct.
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
11.8.5
11.8.5.1
The alien’s qualifications for the job
Form ETA 750-B
The description of work experience is a crucial part of the labor certification process.
The information put on ETA 750 Part B must clearly establish that the alien actually
possesses the minimum requirements set forth on ETA 750 Part A.
11.8.5.2
The relationship between the minimum job requirements and the
qualifications of the alien
In developing the job’s minimum requirements for purposes of the labor certification
process, an employer might naturally look to the qualifications of the alien on whose
behalf the application is being filed. Employers should keep these two points in
mind when considering the specified minimum requirements vis-a-vis the alien
beneficiary’s qualifications:
1.
2.
11.8.5.2.1
Although it is important to assess the alien’s qualifications for the job,
employers should approach defining the minimum job requirements based
not on what qualifications the alien has, but rather based on the minimum
knowledge, skills, and experience and education or training that would be
needed to fill the position if the job were currently empty.
Minimum requirements that exactly “mirror” the alien’s qualifications might
be suspect on their face as being “overly restrictive.” While the skills,
knowledge and experience of the employee often serve as a point of reference, those qualifications should not be the factor driving the description of
minimum requirements
Examining whether the alien’s qualifications meet the minimum requirements for the job
The employer must show not only that there are no U.S. workers ready, willing, and
qualified for the job, but also that the alien is qualified for the job.
The most important thing to remember when examining whether the alien’s
qualifications meet the minimum requirements for the job is that the alien must
have possessed the minimum qualifications required for the job before he or she
was hired into the position.
Practice note
Two situations to
watch out for!!
Here are two situations that you should particularly be on the
lookout for:
1.
A credential (education, license, etc.) or skill listed as being a minimum
requirement for the job was not officially obtained by the alien until after he
or she was hired for the job.
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
2.
Years of experience listed as being a minimum requirement for the job were
gained “on the job” while working for the sponsoring employer, in a position that is the same or similar to the job that’s the basis for the labor certification application.
In the first scenario, the position of the Department of Labor will be that if the alien
was hired before the credential or experience was obtained, then that credential must
not be an actual minimum requirement to enter the occupation. In the second
scenario, the position of the Department of Labor will be that experience gained “on
the job” is like “training,” and if the employer was willing to train the alien
employee, then they should be willing to train a U.S. worker.
11.8.5.2.2
Using prior experience with the sponsoring employer to show the alien has
the required qualifications
There are only two ways that an alien might be able to use prior experience with the
same employer to show that he or she meets the minimum requirements:
1.
2.
11.8.5.2.3
If the prior employment was in a position that is “sufficiently dissimilar” to
the one that’s the basis for the labor certification application; or
If the employer can show that there are significant objective business circumstances that make it infeasible to train a new worker.
Test for “sufficient dissimilarity”
The factors to consider when determining whether jobs are sufficiently dissimilar
include, but are not limited to:
The relative job duties, supervisory responsibilities and job requirements of
the positions;
The positions of the jobs within the employer's hierarchy;
The employer's prior employment practices;
Whether and by whom the “higher” position has been filled previously;
Whether the “higher” position is newly created;
The percentage of time spent performing each job duty in each job; and
The respective salaries or wages.
11 - 44
BALCA Benchbook, Chapter 1, citing Delitizer Corp. of Newton,
88-INA-482 (May 9, 1990) (en banc); and Houston Graduate
School of Theology, 90-INA-491 (Dec. 6, 1991).
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
11.8.6
Recruitment efforts
Unless the position qualifies as a Schedule A occupation, the employer must
demonstrate the inability to locate minimally qualified U.S. workers for the job.
Recruitment efforts associated with the labor certification process have different
standards than recruitment in the real world of employment.
The following table highlights the differences between normal recruitment efforts
and labor certification recruitment standards.
Resource 11-p
Objective
Employer preferred
qualities or
“intangibles”
Disclosure of wage
Hybrid job
Alien’s on-the-job
experience
11.8.6.1
Table: comparing labor cert recruitment to the “real world”
Normal recruitment
Identify the best candidate
Employer preferences for a
certain level of education or
experience and intangible factors
such as personality or “good fit”
factor heavily into hiring
Wage information generally
considered confidential and not
disclosed to other workers
Some job descriptions include
duties that the employer considers
top belong to one position, but
DOL may consider to be more
than one job
Employer would consider alien’s
experience up to the date of
application
Recruitment for Labor Certification
Establish that no minimally qualified
U.S. workers are available for the job,
and that employment of alien will not
adversely affect wages and working
conditions of similarly employed U.S.
workers
Irrelevant; cannot be used as a basis for
eliminating applicants. Any
requirement listed as “preferred” will
be taken to mean “required” by D.O.L.
Requires wage disclosure of alien’s
wage to people in the work place
D.O.L. uses job descriptions from the
Dictionary of Occupational Titles
which describe specific duties and
requirements for only one job
Cannot consider any experience gained
by the alien while working for the
employer, unless it was in a different
job with the employer
The advertisement
If the job offer described on ETA-75 Part A is acceptable, the SWA will instruct the
employer to conduct a recruitment by placing an advertisement in a newspaper of
general circulation or in a professional, trade or ethnic publication, whichever is
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
appropriate to the occupation and most likely to bring responses from able, willing,
qualified, and available U.S. workers.
20 C.F.R. § 656.21(g)
The advertisement must:
Direct applicants to send resumes to the SWA, for referral to the employer
Shall not identify the employer
Describe the job opportunity as stated on ETA 750 Part A
State the rate of pay, which shall not be below the prevailing wage
Offer prevailing working conditions
State the minimum job requirements, as stated on ETA 750 Part A
Offer wages, terms and conditions of employment that are no less favorable
than those offered to the alien
If published in a general circulation newspaper, run for three consecutive
days including a Sunday; or if published in a professional trade or ethnic
publication, be published in the next published edition.
Any advertisements for standard labor certification cases must be blind ads (i.e., not
mention the employer, but rather direct applicants to send their applications to the
SWA). The SWA will assign a Job Order number to the case. This Job order number
must appear in the ad.
The recruitment period is for thirty days, during which time applicants may submit
their resumes for consideration.
11.8.6.2
Posting requirements
In addition to advertising in nationally distributed media, the employer is required to
post a notice of job availability at the work site to see if there are any internal U.S.
workers who may be interested in the position.
20 C.F.R. §656.21(b)(3)
The notices must be posted in at least two conspicuous locations on the work
premises for 10 business days and shall:
Direct applicants to report or send resumes to the employer
Describe the job opportunity
State the rate of pay
Offer prevailing working conditions
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NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
State the minimum job requirements
Offer training, if this is customary for the type of position
Offer wages, terms and conditions that are no less favorable than those
offered the alien employee
According to the TAG (page 49),
…appropriate locations for posting notices are bulletin
boards near wage and hour and occupational safety and health
notices or where other notices of interest to all employees
are posted. The posted notices need only appear at the
establishment where the job opportunity is located. …The
Department does not intend to regulate the specific size of
posted notices as log as they are made to be conspicuous and
clearly visible. Posting practices such as placing actual
size copies of newspaper advertisements on crowded bulletin
boards are unacceptable.
Posting can take place either before or after filing the labor certification application
with the SWA office.
For unionized positions the TAG give the following guidance:
If unions are normally a source of recruitment, the employer
must provide a statement that they could not refer workers.
Even if the employer is not affiliated with a union, some
unions will refer workers is they will be paid at the union
rate. In all applications where the occupation is a third or
more unionized in the area of intended employment, the local
office should make a statement on the availability of workers through the union when transmitting the application to
the certifying officer.
However, if a union had workers
available, they must be referred to the employer in order to
support a finding of availability by the certifying officer.
(page 52)
11.8.6.3
Interviewing applicants
The employer should review the resumes of all applicants responding to the
advertisements as soon as possible after receipt. Delaying for even two weeks may
be taken by D.O.L. to be indicative that the job opportunity may not really be open
to U.S. workers. Although applicants that clearly do not have the major minimum
qualifications will probably not have to be interviewed, some cautious employers
choose to interview apparently unqualified applicants over the phone, to rule out the
possibility that they might posses the minimum qualifications. The process of
reviewing the applications, calling the applicants, and arranging interviews should
be standardized as much as possible.
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
The alien should play no role in the evaluation interview process.
20 CFR § 656.20(b)(3)(i)
The interviewer should be the person who normally interviews or considers, on
behalf of the employer, applicants for job opportunities such as that offered the alien,
but which do not involve labor certification.
20 C.F.R. § 656.20(b)(3)(ii)
The employer should attempt to contact the applicant via telephone and should
document each attempt. If unable to reach the applicant by telephone or e-mail, the
employer should send a letter (via certified mail) requesting the applicant contact the
employer to arrange an interview.
U.S. workers who appear to have the minimal qualifications listed on the ETA 750
Part A may be rejected only for legitimate, business-related reasons which,
according to the TAG (page 53) include, but are not limited to:
Does not have required training or experience
Factors that may adversely affect his or her ability to do the job (bad work
references, poor health, lack of English language proficiency)
Race, religion, national origin, gender, personal hygiene, etc. cannot be used as
legitimate factors to disqualify applicants.
Applicants who are not U.S. workers (U.S. workers are defined as U.S. citizens,
lawful permanent residents, refugees, and asylees [20 C.F.R. § 656.3]) need not be
considered for the position.
The employer must clearly state the specific reason why each applicant was not
hired.
11.8.6.3.1
Summarizing the results of recruitment
The employer shall provide the SWA with the results of recruitment within 30 days.
The results of recruitment submitted by the employer shall:
20 C.F.R. § 656.21(j)
Identify the source(s) of the advertisement and include the original tear sheets from
each time the advertisement appeared
Give the number of U.S. workers who responded
Give the number of interviews conducted with U.S. workers
Specify the lawful job-related reasons for not hiring the U.S. workers
11 - 48
NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Include evidence of internal posting of the job opportunity
11.8.6.4
Special procedures that alter the standard labor certification process
in particular cases
11.8.6.4.1
Reduction in Recruitment
The Certifying Officer may reduce the employer’s recruitment efforts if the
employer can satisfactorily document that it has already adequately tested the labor
market with no success even though the employer offered at least the prevailing rate
of pay and working conditions.
20 C.F.R. § 656.21(i)
To request a reduction in recruitment, the employer submits a written request that
includes:
Evidence good faith recruitment efforts conducted in the last 6 months
Internal posting notices, similar to those discussed under the standard labor
certification.
Any other information which the employer believes will support the contention that further recruitment efforts will be unsuccessful
Two copies of ETA 750 Parts A and B with original signatures
According to the Technical Assistance Guide,
the employer may file proof of its efforts to recruit U.S.
workers with the local office with the application for labor
certification. This documentation should include the information required at 20 C.F.R. § 656.21(b)(1)(i) and (ii) if
the employer is requesting a reduction in recruitment. The
local office should not automatically consider the mere filing of this documentation as a request for reduction in
recruitment. This request must be in writing. (page 45)
11.8.6.4.2
Special handling for college or university teachers
College and university teachers and aliens who are of exceptional ability in the
performing arts may be able to take advantage of the “special handling” provisions
of 20 C.F.R. § 656.21a, which provide streamlined processing and unique eligibility
requirements. Only special handling for college and university teachers will be
discussed here. Advisers who are interested in special handling for performing
artists should refer to 20 C.F.R. § 656.21a(iv).
The special handling provisions for college and university teachers apply only to
those positions that involve some actual classroom teaching. D.O.L. recognizes that
some college and university positions combine teaching duties with other duties
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CHAPTER 11: Lawful Permanent Residence
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
such as research, administration, or student advising. According to the TAG (page
69), as long as part of the position’s responsibilities involve some actual classroom
teaching, and the alien was selected pursuant to a “competitive recruitment and
selection process,” the job opportunity may be processed under the special handling
provisions.
To apply for labor certification under the special handling provisions, the employer
must file the following with the SWA having jurisdiction over the place of
employment. An application for special handling must be received by the SWA no
later than 18 months after the alien was selected as the most qualified candidate for
the position.
20 C.F.R. § 656.21a(1)(iii)(A)-(E)
Resource 11-q
Application Checklist: Special Handling Labor Certification
Form ETA 750-A, including a full description of the job offer, signed by the
employer, completed in duplicate originals;
Form ETA 750-B, statement of qualifications of the alien, completed and
signed by the alien, completed in duplicate originals;
Documentation that the alien was selected for the job pursuant to a competitive recruitment and selection process, through which the alien was found to
be more qualified than any of the U.S. workers who applied for the job. The
documentation must include a statement from the employer, signed by an
official who has actual hiring authority, outlining in detail the complete
recruitment procedure undertaken, and which sets forth:
- The total number of applicants for the job opportunity;
- The specific lawful job-related reasons why the alien is more qualified
than each U.S. worker who applied for the job; and
- A final report of the faculty, student, and/or administrative body making
the recommendation or selection of the alien, at the completion of the
competitive recruitment and selection process.
A copy of at least one advertisement for the job opportunity placed in a
national professional journal, giving the name and the date(s) of publication,
and which states the job title, duties, and requirements;
Evidence of all other recruitment sources utilized;
A written statement attesting to the degree of the alien’s educational or professional qualifications and academic achievements; and
A copy of the notice of the job opportunity that was posted in at least 2 conspicuous locations, in conformance with 20 C.F.R. § 656.20 (g)(1)(ii) (or to
the bargaining representative if unionized).
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NAFSA Adviser’s Manual (2004 release)
Sec. 11.8 - Alien Labor certification
Archived extract of the NAFSA Adviser’s Manual 2004 Release. For reference only.
Although still subject to the prevailing wage requirement, the streamlined
processing, avoidance of SWA-coordinated advertising, and the standard allowing
selection to be based on who is best qualified for the position all make the special
handling procedures a good processing choice, especially if the alien does not
qualify for one of the EB-1 preference categories.
11.8.7
Labor certification determinations
Once the SWA completes its review, the labor certification application is forwarded
to the DOL Regional Certifying Officer. The certifying officer makes a
determination either to grant the Labor Certification or to issue a Notice of Findings
based on:
1.
2.
3.
Employer compliance with the regulations. While harmless errors may be
overlooked, employers should not disregard a regulatory requirement in the
anticipation that the certifying officer will view it as a harmless error;
Availability of U.S. workers. The certifying officer is ultimately the one that
determines if the labor market was adequately tested, and if any U.S. workers were rejected, whether the rejection was based on legitimate factors;
Adverse impact on the wages and working conditions of U.S. workers.
Using information about the labor market, special circumstances of the
industry or occupation, prevailing wage and prevailing working conditions,
the certifying officer determines if the employment of the alien adversely
impact the wages and working conditions of U.S. workers.
20 C.F.R. § 656.24(b)(1)-(3)
If the labor certification is approved, an approval stamp will be placed on the labor
certification application, and one of the original copies will be returned to the
employer, for use in filing an immigrant visa petition (Form I-140).
11.8.7.1
Notice of Findings
If the regional certifying officer plans to deny the labor certification, he or she must
first issue a Notice of Findings (NOF) to inform the employer and the alien of the
intent to deny, providing specific reasons for the intent to deny, and to give the
employer an opportunity to rebut the notice of findings. The employer is given 35
days from the date of the notice to correct any deficiencies or to offer rebuttal
evidence or documentation. The certifying officer may grant an extension of time if
the employer can show good cause.
11.8.7.1.1
20 C.F.R. § 656.25(c)
Rebuttals
Rebuttal evidence includes documentary evidence to rebut the findings (for example
a letter of business necessity); documentation to show that deficiencies have been
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corrected; or arguments that the certifying officer’s proposed findings incorrectly
apply the law to the facts. An employer should collect all information and arguments
it intends to use in its rebuttal and submit them together at one time. A rebuttal
submitted by the employee will not be considered if the employer has not submitted
rebuttal evidence.
20 C.F.R. § 656.25(d)
Any findings in the Notice of Findings that are not rebutted are considered to be
accepted by the employer as valid.
A rebuttal must be mailed by certified mail by the 35th calendar day (as specified in
the Notice of Findings) to be considered timely filed. [20 C.F.R. § 656.25(e)(1)]
Documents that were sent after the 35th day will not be considered. Failure to file a
rebuttal in a timely manner is a failure to exhaust administrative remedies and will
result in the denial of the labor certification which may eliminate the right to appeal
the denial.
If the rebuttal raises additional issues, another Notice of Findings may be issued.
11.9
Employment-based immigrant petition: Form I-140
Form I-140 is used to request a specific classification under the employment-based
system of immigrant classifications.
11.9.1
Completing Form I-140
Always make sure to use the most recent version of Form I-140 and all immigration
forms. Completing the I-140 is not complicated, but, as with all USCIS forms, it is
important to pay attention to detail.
http://www.uscis.gov/graphics/formsfee/forms/i-140.htm takes
you to the I-140 form information page on the USCIS Web
site. Check there to verify that you have the most recent
version of Form I-140, as well as the current I-140 filing
fee.
Documenting ability to pay the wage offered
In addition to substantive requirements relating to the position, the alien’s
qualifications, and any necessary labor certification, the employer must also submit
at least one of the following documents with the I-140, to establish ability to pay the
wage:
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8 C.F.R. 204.5(g)(2)
NAFSA Adviser’s Manual (2004 release)