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Basic Requirement

The Immigration and Nationality Act (INA) requires that some aliens seeking to immigrate on the basis of an offer of U.S. employment first receive a labor certification from the U.S. Department of Labor (DOL). That requirement is set out in Section 212(a)(5)(A) of the INA as a ground for inadmissibility from the United States: Aliens seeking to immigrate in the second or third employment-based preferences are inadmissible unless the Secretary of Labor has first issued a labor certification.

Who Needs a Labor Certification?

As just noted, the labor certification ground for inadmissibility applies only to aliens seeking permanent residence in the second and third employment-based preferences. The second employment-based preference covers aliens with exceptional ability in the sciences, arts, or business, and aliens with advanced degrees in professional fields; under limited circumstances, a small group of these aliens may be exempted from the labor certification requirement, as discussed below. The third employment-based preference covers aliens with bachelor's degrees in their fields, skilled workers, and unskilled workers.

What the Department of Labor Must Certify

The labor certification ground for inadmissibility, Section 212(a)(5)(A) of the INA, requires that the Secretary of Labor make two findings as part of the labor certification:

  • Qualified U.S. workers cannot be found, at the time of filing the application and in the area of intended employment, who are available, willing, and able to fill the position being offered to the alien; and
  • Employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Because the labor certification requirement is framed as a ground for inadmissibility that the alien must overcome in order to be accorded permanent resident status, it is clear that the burden falls on the employer and the alien to establish that the certification can be made. The authority of the Secretary of Labor to issue labor certifications has been delegated to the certifying officers (COs) of the ten DOL regions. Although the COs make the labor certification determination, a role in the process has been given to the state employment security agencies (SESAs) of the fifty states and the District of Columbia. That role is based on the Wagner-Peyser Act of 1933, which provides the SESAs with federal funding as long as they undertake certain responsibilities, including a role in the labor certification process.

The DOL has interpreted the ground for inadmissibility to require that the employer offer to pay the alien at least the prevailing wage for similarly employed U.S. workers in the area of intended employment (the employer must also offer working conditions - hours, vacations, benefits - comparable to those offered similarly employed U.S. workers, but working conditions are rarely an issue in labor certification applications). It has also interpreted the statute to require that the employer undertake a recruitment campaign to determine the availability of qualified U.S. workers, and the employer must express a willingness to hire a qualified U.S. worker for the position if one is available. A U.S. worker who meets the employer's minimum requirements for the job is considered available even if the alien is equally ore more qualified; the employer must express a willingness to hire any minimally qualified U.S. worker under the DOL interpretation of the labor certification requirement U.S. workers include citizens, permanent resident aliens, aliens granted temporary residence under one of the 1986 legalization programs, refugees, and asylees.




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