Alien labor certification is part of the sponsorship process for employers who wish to hire foreign workers on a permanent basis. The employer may assist the foreign worker in obtaining a green card on the basis of employment.
Most employers who apply for certification are attempting to petition alien workers who already work for the same company, but in a different branch overseas.
Alien labor certification is processed through the U.S. Secretary of Labor. Obtaining labor certification can involve a lengthy process wherein the employer must prove that there is a shortage of qualified U.S. workers to fill the position.
What is the Process for Obtaining Alien Labor Certification?
There are several steps that the employer must complete before alien labor certification is issued. These steps include:
- Application: The employer must first file an application with a state employment agency (the name of the agency may differ by state). The application will usually include a job description, job qualifications and experience required. The employer must state how the foreign candidate will fulfill the job qualifications.
- Recruitment: After reviewing the application, the employer must then complete a recruiting process. Labor certification will only be issued if the job cannot be filled by U.S. citizen workers. All candidates must be interviewed and given a fair chance for hiring
- Approval: If a U.S. citizen who is qualified for the job cannot be found, the state agency will approve the application. If it is determined that the recruiting process was not conducted in good faith (i.e., U.S. citizen candidates were not seriously considered), the application may be denied
- Post-Approval: After approval, the employer can file with various other state entities such as the Department of Labor for further verification. They can also begin applying for visa petition to obtain a green card for the foreign worker
The process for obtaining Alien Labor Certification can be somewhat lengthy due to the recruiting requirements that are involved. The Department of Labor is very strict when it comes to granting certification to foreign workers before giving U.S. workers a chance to be hired. This is especially true during times of high unemployment.
Do all Classes of Alien Employees Require Labor Certification?
No- some classes of alien workers are exempt from labor certification requirements. An employer does not need to go through the certification process listed above when petitioning these types of employees:
- Aliens with Extraordinary Ability in the Arts, Sciences, Business, Athletics, or Education. This includes outstanding executives, managers, researchers, or professors. These employees fall under the visa category of “Employment First Preference”
- Professionals with Advanced Degrees (Employment Second Preference) - may also include workers with exceptional abilities in the Arts, Sciences, etc.
- Skilled Workers and Professionals with Baccalaureate Degrees, other workers (Employment Third Preference)
- “Special Immigrants” such as religious workers and pastors (Employment Fourth Preference)
- Immigrant Investors- persons who are willing to invest $500K - $1 million in the U.S. and create at least 10 job positions (Employment Fifth Preference)
If the alien employee does not fall into any of these preference categories, then the employer must go through the alien labor certification process listed above.
Do I Need a Lawyer for Alien Labor Certification?
If you are seeking to petition a foreign employee for work in the U.S., you may wish to contact an immigration lawyer for advice and assistance. As you can see, the alien labor certification process can be both complex and time-consuming. Your attorney can assist you throughout the process to make sure that you meet the necessary requirements for certification.