Labor certification is a United States of America immigration concept. There are several options available to US employers who wish to hire foreign, non-immigrant workers on a temporary but long-term basis: H-1B visa

H-1B visa

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101. It allows U.S. employers to temporarily employ foreign workers in specialty occupations...

s, L-1 visa

L-1 visa

An L-1 visa is a visa document used to enter the United States for the purpose of work in L-1 status. It is a non-immigrant visa, and is valid for a short amount of time, generally three years. L-1 visas are available to employees of an international company with offices in both the United States...

s, TN status

TN status

TN status is a special non-immigrant status in the United States unique to citizens of Canada and Mexico. Professions identified in the Canada - United States Free Trade Agreement which began in 1988 are permitted TN Visas for legal work in the United States and Canada, creating freedom of labor...

 and other options. These temporary options are often sufficient to meet the needs of employer and employee. When a US employer wishes to hire the services of the foreign worker

Foreign worker

A foreign worker is a person who works in a country other than the one of which he or she is a citizen. The term migrant worker as discussed in the migrant worker page is used in a particular UN resolution as a synonym for "foreign worker"...

 on a permanent basis, however, a complex sponsorship process for the green card

United States Permanent Resident Card

United States lawful permanent residency refers to a person's immigration status: the person is authorized to live and work in the United States of America on a permanent basis....

 begins, a process that can take years. Generally (although not always) the first step in that process is labor certification. Labor certification is a process of proving that there are no qualified US workers for the position being offered. If there are qualified US workers - in fact, even generally speaking if there are even minimally qualified US workers - then the foreign worker cannot be offered the position on a permanent basis. This does not necessarily mean that the foreign worker will be immediately replaced by a qualified US worker, though. The foreign worker can still serve out the remainder of their existing US temporary visa, and may well be able to re-apply for labor certification and be approved. But it does create a substantial inconvenience for the US employer who wishes to hire a foreign worker, which does provide some protection to US workers, although the process is controversial.

Reduction in Recruitment

The original labor certification process, used exclusively up until about 1998, involved a lengthy interview process, whereby instructions were provided after filing the case as to how the employer was to go about recruiting for the position. After complying with those instructions, the employer needed to persuasively argue why any US applicants for the position were unqualified - otherwise the position would be denied. Beginning in 1998, a more streamlined approach called Reduction in Recruitment (RIR) was introduced. Under RIR, the sequence of events was reversed: the employer first did the recruiting, and then filed the case with evidence that no minimally qualified US workers could be found.

RIR tended to speed processing times up somewhat, so that labor certification times which were previously measured in years began to be measured in months. Both regular and RIR labor certification involved filing first with the Department of Labor for the individual state where the job was located (the individual state presumably being most familiar with local labor market conditions) and then, if approved at the state level, the case was then transferred to the federal Department of Labor for final approval.

Program Electronic Review Management

More recently, in March, 2005, a completely electronic labor certification system, PERM (Program Electronic Review Management) came into use. PERM is intended to reduce labor certification times to under 60 days. Ironically, however, PERM may be creating as many backlogs as it is intended to solve. Because of congressionally mandated annual quotas, there may not be enough visas available to grant green cards

United States Permanent Resident Card

United States lawful permanent residency refers to a person's immigration status: the person is authorized to live and work in the United States of America on a permanent basis....

 to everyone who is approved by PERM, which may have played a role in the retrogression of priority date

Priority date

Priority date is a United States immigration concept - it is the date of filling for labor certification.A common path to the green card in the United States is to obtain it through a family based or employment based petition, a very complex process that can take many years to complete. When a...

s on September 13, 2005.

Controversy

As with many immigration procedures, labor certification tends to be controversial. Its backers argue that it is a rigorous procedure for determining that only foreign workers who truly have skills needed by the US labor market and not readily available locally are hired. Its critics, however, say that US employers will first hire a foreigner on a long-term temporary visa, and then try to tailor the job description so that that foreigner is the only person who could possibly be hired - thus gaming the labor certification process to guarantee a favorable outcome. However, the job requirements, as described by the petitioning employer in the labor certification application, must represent the employer’s actual minimum requirements for the job opportunity. Those job requirements described on a labor certification application are reviewed and evaluated closely by the Department of Labor in accordance with the Code of Federal Regulations that sets forth the standards for determining the appropriate requirements for a job opportunity. Ultimately, the employer must prove that they have not hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.

External links

• Permanent Labor Certification
• PERM Labor Certification Info Center - FAQs, Articles, and Glossary from The Law Offices of Stuart J. Reich