Employment-based immigration

Labor Certification under RIR (obsolete)

A Permanent Labor Certification for the Department of Labor (DOL) is one of the avenues which allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (CIS), the employer must obtain an approved labor certification request (Form ETA 750) from the DOL's Employment and Training Administration (ETA). The DOL must certify to the CIS that there are no qualified U.S. workers available and willing to accept the job at the prevailing wage for that occupation in the area of intended employment.

The DOL, in concert with the local State Workforce Agency (SWA), processes applications for Alien Employment Certification (Form ETA 750). The date the labor certification application is filed with the SWA is known as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the CIS service center with an I-140, Immigrant Petition for Alien Worker. You may access the State Department Visa Bulletin to learn which priority dates are currently being processed.

Qualifying Criteria

• The employer must hire the foreign worker as a full-time employee;
• There must be a bona fide job opening;
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process for Filing

DOL/SWA Processing

Normal Processing

1. The employer must complete an application for Alien Employment Certification (Form ETA 750). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the applicant must possess to do the work, and a statement of the prospective immigrant's qualifications.
2. The employer must then submit the application to the SWA responsible for the specific job location. The SWA date stamps the application when it is received (priority date) and completes a preliminary review of the application. The SWA also notifies the employer of potential problems, including if the minimum requirements for the position are reasonable and job-related, and determines that the wage offered meets minimum prevailing wage standards.
3. The SWA will then work with the employer to develop a job advertisement for placement in either a journal or newspaper of general circulation in the area of intended employment (depending on the nature of the job). The ad must contain a complete description of the vacancy including job responsibilities, duties, salary, and minimum qualifications (education, training, and experience). The employer must interview all candidates who apply and meet the position requirements.
4. The employer will evaluate job candidates against the job criteria (as established in Form ETA 750), and must submit a recruitment report to the SWA after applications have been received and qualified applicants interviewed. The recruitment report is a summarization of the applicants received and the candidates interviewed, including any decisions made to hire or not hire the candidates.
5. If any qualified U.S. workers are identified, the SWA will inform the employer that the application will likly be denied by the Certifying Officer in the regional office.
6. The information gathered by the SWA will be collated and forwarded to the regional office for review and a decision. Generally, the SWA will notify the employer when the application and all associated documents have been forwarded to the certifying officer in the regional office.
7. Once the certifying officer has reviewed the recruitment report and accompanying documentation, the certifying officer will issue a final determination granting or denying the application. The DOL may require additional information, interviews or advertisement if it feels the employer has not met all conditions for certification. The DOL may issue a Notice of Findings (NOF) indicating the certifying officer's intent to deny the application and identifying all reasons for the intended denial. The NOF will also offer the employer an opportunity to rebut the NOF within 35 days. The letter will also provide guidance to the employer regarding their right to appeal the final decision.

This process can sometimes take several years depending on the state in which the job is being offered. States that are popular sites for immigrant hiring, such as New York, Texas, or California, may take much longer than states with less such activity. Click here for Processing Times.

Reduction in Recruitment (RIR) Processing

The "normal process" can be expedited by the use of RIR procedures. The employer must request RIR when submitting the Form ETA 750 to the SWA.

1. The employer must document that it has engaged in, within the last six months, a pattern of recruitment in an effort to hire U.S. workers for the position, but has been unsuccessful in identifying qualified and available U.S. workers. The pattern of recruitment may vary depending on the nature of the occupation being requested and the labor market at the time of the job search. However, the minimum is one print advertisement and evidence of other actions taken to search the labor market. These other actions may include use of Internet, use of job markets on the Internet, participation in job fairs, use of union halls (where appropriate), participation in college job fairs, and other similar activities.
2. The employer must submit evidence of the pattern of recruitment to the SWA. In addition, a recruitment report must be provided of the active recruitment effort to hire U.S. workers at the prevailing wage at a minimum showing the number of U.S. workers who applied, and the reasons they were not accepted. If the certifying officer feels the pattern of recruitment is appropriate to the occupation and the labor market, the application will be approved with no need for the state to do an additional supervised recruitment process. Since supervised recruitment is the most time-consuming aspect of the permanent process, use of RIR can significantly reduce the time required in the DOL process. It is possible that the DOL phase of employment-based visas can be accomplished in under one year using the RIR process.

In either the case of normal processing or RIR, if a Form ETA 750 has been submitted but no response has been received, you may determine the status by contacting the SWA to whom the application was filed. If the SWA has informed the employer/agent that the application has been forwarded to the ETA regional office, you may find the status by contacting the appropriate regional office. Each regional office has a phone information retrieval system that allows interested parties to receive an automated response to the status of a case by using either the case number or the employer telephone number.

If the appropriate regional office approves the application, the Form ETA 750 is “certified” (stamped) by the certifying officer and returned to the employer/agent who submitted the application.

The CIS Petition

After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (CIS), Form I-140. The employer then attaches the certified Form ETA 750 to a completed CIS Form I-140, along with the appropriate fees, and submits the package to the appropriate CIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other CIS specified documentation.

Schedule A Occupations

Schedule A is a list of occupations, set forth at Section 656.10 , for which the Department has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.

The occupations listed under Schedule A include:

• Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
• Professional Nurses - who have (i) passed the Commission on Graduates in Foreign Nursing Schools (CGFNS) Examination; or (ii) who hold a full and unrestricted license to practice professional nursing in the state of intended employment.

An employer shall apply for a labor certification for a Schedule A occupation by filing an Application for Alien Employment Certification Form ETA 750, in duplicate with the appropriate CIS Center, NOT with the Department of Labor or a SWA.

Labor Certification under "PERM"

The Department of Labor (DOL) has undergone significant changes that will replace the current system of filing labor certification applications. DOL has implemented a new labor certification procedure called PERM (Program Electronic Review Management).

The new regulations will become effective March 28, 2005. The DOL has overhauled the entire labor certification process in light of criticism surrounding the current system and the extremely long processing times. The new system is designed to streamline processing and ensure expeditious processing of cases at the Federal level with a significant change in the time it takes the DOL to make a determination. The DOL expects that they will make a determination on the application within 60-90 days of filing as opposed to the 2-5 years under the present system.

Under the old procedures, labor certification applications were processed at the state and regional levels. In an effort to prepare for the implementation of PERM, the DOL has stopped all current labor certification processing at the state and regional levels as these offices are transitioned into the new program. Currently, there are 315,000 labor certification applications pending throughout these state and regional DOL offices. These cases are being sent to two Backlog Reduction Centers. According to the plan, all existing labor certification applications will be forwarded to the Backlog Reduction Centers by March 28, 2005. The DOL estimates that they will clear the pending backlog of cases in 20-30 months.

PERM processing will now be handled by two National Processing Centers. Employers will be required to recruit for US workers prior to filing the application, utilizing required recruitment efforts depending on the nature of the job and the requirements of the position. More extensive recruitment efforts will be required for professional occupations. The filing will be made by the employer either online or by mail to one of the new National Processing Centers. Although the process seems to appear more streamlined and efficient than the present system, it remains to be seen whether the DOL’s projections will become reality.