Why Labor Certification Is Denied

Labor certification is a critical part of the employment based immigration process, but it's not uncommon to run into problems during this stage.

If you are sponsoring someone for, or you yourself are seeking, a green card through employment, you've no doubt heard about the bewildering process of Labor Certification. This procedure, known in shorthand as the "Labor Cert," is a job market test required by the U.S.'s immigration laws. An employer seeking to sponsor a foreign national for permanent residence must be prepared to employ the foreign national in a full-time position. As part of the process, the employer must "test" the local geographic area to see whether there are any U.S. workers (citizens, permanent residents, refugees, asylees) already in the U.S. who could fulfill the duties of the full-time job. If there are, the employer will not be allowed to sponsor the foreign national.

The law prescribes specific steps an employer must follow for the Labor Cert test. As you might guess, there are quite a few pitfalls and detours that can happen during this process. Let's look at some of the most common ones.

1. Incomplete Recruitment Efforts

The market test is probably the most time- and effort-intensive of the required steps for a Labor Cert. The law requires that an employer run certain types of "help wanted" or "open position" advertisements, declaring to the public that the job through which the employer hopes to sponsor the foreign national is available. All of this advertising must be completed within the 180-day period before the Labor Cert is filed and must also be finished 30 days prior to the Labor Cert filing.

At a minimum, the sponsoring employer must advertise the position using the following methods: 1) for 30 days through the local State Workforce Agency; and 2) in two Sunday newspaper advertisements in the newspaper generally circulated in the employer's metropolitan area. For professional jobs that require a degree, the employer must supplement these two methods by three additional forms of recruiting, also prescribed by law, including: job fairs, career services offices on campuses, employee referral programs, or third-party job search websites. Further, the content and placement of ads must be clear enough that the general public can reasonably find and understand the job offer. In other words, general job applicants must have a "fair shot" at finding and responding to the ad.

This recruitment and advertising process provides quite a few places for errors and missteps, which can sink a Labor Cert application. Failure to comply with the 180-day and 30-day timing deadlines noted above can result in a Labor Cert denial.

Missing one or more of the recruitment or advertising methods, or even failing to properly document such recruitment or advertising, can also end in a denial. Unclear or vague advertisements, or ads placed in publications having little to do with the industry or field of the job can be seen as efforts to hide the job's availability, which can also garner a denial. Your employer must be careful in the market test process, be clear and open about the job availability, and be thorough in documenting all recruitment and advertising efforts.

2. The Job Description and "Business Necessity"

The law requires that a sponsoring employer accurately describe the duties, educational requirements, experiential requirements, and skill requirements for the sponsored position. This means that an employer cannot set the requirements for the position impossibly high solely to discourage persons others than the sponsored foreign national from applying for the job. This also means that the employer must not "tailor" the job duties and requirements so that they match only the sponsored foreign national's credentials.

The law specifically says that any educational, experiential, or skill requirements for a job must be reasonably necessary to fulfill the job's duties and responsibilities. This "Business Necessity" concept can, and often does, block Labor Certs from being approved. A sponsoring employer must be careful to both accurately describe the duties and responsibilities of a job and set reasonable requirements and prerequisites for that job. The employer should consider industry standards and the general hiring practices of companies and businesses in the same fields. The employer should also look at any similar positions already with the employer's own business or with other similar organizations and consider what those positions require.

For example, requiring a computer programmer at a software company to speak fluent German might be seen as unreasonable, particularly if the programmer does not need to understand one word of German to do the job. However, an elementary school teacher working at a school that immerses its students in German could be reasonably expected, and required, to speak German fluently. An employer going through the Labor Cert process must take care to reasonably set the requirements for the job.

3. Prevailing Wages and Ability to Pay

The law requires that an employer sponsoring a foreign national pay that employee at least the prevailing wage rate for the particular job. The employer must also be able to prove that the company can afford to pay the employee at the prevailing wage. The purpose of the law is twofold: to prevent foreign national workers from being exploited through lower wages, and to prevent the depression of wages in the job market.

The prevailing wage is the "average" wage paid to persons employed in similar positions, requiring similar educational, experiential, and skill requirements, in the local geographic area. The U.S. Department of Labor and state labor agencies regularly collect wage information from the wide variety of careers and fields. A number of private wage survey firms also collect and compile this wage data.

Employers cannot dance around prevailing wages. If an employer wishes to sponsor a foreign national through a specific job, the employer must attest that the foreign national will receive at least the prevailing wage and that the employer has the finances to pay at least that wage. This can be a significant stumbling block for many employers. For example, some employers might find the "official" prevailing wage particularly high as compared to what they would normally pay a U.S. worker. Other employers might not have the necessary financial documentation to show that they can afford to pay the prevailing wage.

Prevailing wages can present huge problems for many employers. Foreign nationals hoping for sponsorship through a U.S. employer should carefully and thoroughly discuss this issue with their sponsoring employer.

4. Job Availability and Layoffs

The law says that if an employer lays off or furloughs employees, that employer cannot simultaneously or suddenly sponsor a foreign national for the same jobs or positions without first taking extra steps. Those steps include carefully reviewing the qualifications of the terminated employees to determine whether they may meet the job requirements. If so, the employer first must offer the job to the terminated employees.

As you can imagine, this creates an awkward situation if laid off employees says they would accept the job. Many employers simply choose to postpone the process for six months, when they're outside the restricted period for layoffs.

If you are in an industry or field that regularly or seasonally experiences layoffs, or if the economic conditions are volatile, watch out for situations where layoffs and furloughs are real possibilities; these can sink a Labor Cert application.

Conclusion

The employment-based immigration process can be one of the fastest routes to obtaining a green card and permanent residence. However, the Labor Cert process, essential to the majority of employment-based green card applications, is fraught with pitfalls that can potentially delay or even derail an applicant from the road to permanent residence. If you are seeking an employment-sponsored green card through the Labor Cert process, or if you are an employer looking to sponsor a foreign national employee, you should discuss your case with an immigration attorney.

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