4 Common Mistakes That Can Hamper Your Labor Certification Process

June 11, 2015

Labor Certification, also known as Labor Cert, is a term you cannot afford to miss if you happen to be an immigrant seeking green card through employment or a similar person’s sponsoring employer.

What is Labor Certification?

According to the U.S.’s Immigration and Labor laws, Labor Certification is a compulsory procedure and a job market test, inevitable for any prospective immigrant or an employer looking to employ a foreign national in their organization. The need for the procedure arises when an employer seeks to sponsor a foreign national for permanent residence by offering a full time position.The procedure requires an employer to confirm or rather, ‘test’ whether there are qualified U.S. citizens or permanent residents already present within the local geographic job market, who could otherwise be offered the same opportunity. In case, such professionals are present, the employer will not be legally allowed to sponsor the foreign national.

As per the U.S.’s Immigration and Labor laws, there is a specific set of rules that must be followed by the employer while conducting the Labor Cert test. Despite the precise framework, some major complications occur during this stage that could endanger the employment based immigration process. Let us decode some of the common stumbling blocks in detail:

4 Common Mistakes That Can Hamper Your Labor Certification Process

An Inadequate Recruitment Process

Undoubtedly, the market test is an exhaustive and time-consuming process. The employer has to undertake considerable advertising of the available positions within the local geographic area for which he might otherwise consider a foreign national. The law clearly specifies a period of 180 days before filing for a labor Cert, within the advertising should be completed, and it must also be finshed 30 days prior to the Labor Cert filing as well.

The employer must utilize advertising methods, compulsorily including, but not limited to:

  • The local State Workforce Agency for 30 days.
  • The local newspaper’s two consecutive sunday advertisements.

Besides these, the employer must apply three recruitment procedures (as per the law):

  • Job fairs.
  • Career services through campuses.
  • Employee referral programs, or job search internet sites.

The motive behind the law for this recruitment process is to provide an equal opportunity to the local general applicants as well. Any flaws in this process, especially compliance with the 180 and 30 days time frame can lead to denial of the Labor Cert. It is important to be correct and clear regarding the available job opportunity in the advertisements and recruitment methods. Any initiative on part of the employer to mask considerable details could hamper the immigration process substantially.

Transparency while Publicizing the Job Requirements

It is legally inappropriate to furnish intentionally customized business necessities to discourage the prospective local employees. The employer must impartially disclose the job responsibilities and the expected educational, experience as well as skill requirements. The law necessitates the expected requirements to be reasonable as per the offered job’s duties and responsibilities, the general industry standards and the hiring practices of similar businesses.

A Twofold Purpose Regarding Wage Payment

According to the U.S.’s Immigration and Labor laws, a prevailing wage is the average wage payable to employees working in a similar industry with same attributes and equal work qualifications.

The prospective foreign national employee should be paid wages in accordance to the prevailing wage rate for the respective job. it is equally essential for an employer to prove their capability to offer the said wages consistently. The bifold agenda behind this law is to, first, prevent the exploitation of the foreign national, and secondly, to prevent the depression of the prevailing wage rates.

The laws are strict regarding this aspect. It requires employers to accordingly attest their guarantee of being capable and employing a foreign national at the prevailing wage rate.

Job Layoffs and Availability

As per the law, an employer cannot sponsor a foreign national for a position that was furloughed recently with regards to earlier employees. This means that if an employer lays off employees and, at the same time, sponsors a foreign national for the same, the Labor cert would be denied. The situation becomes more complex if your industry is prone to frequent layoffs, and/or if the prevailing economic scenario is usually volatile.

In light of the above complications, it is best advised to discuss these conditions in good detail with your immigration attorney. Irrespective of you being a foreign national looking forward to an employment based green card or an employer wanting to sponsor a foreign national; Labor Cert is the most convenient option available. If you take proper precautions and follow the regulations accurately, drawbacks could be avoided.