The labor certification is the second stage in obtaining permission for an alien to permanently live and work in the U.S.A. It usually follows the H-Visa stage. The Labor Certification Application process is a complicated one, and it is highly recommended that legal counsel be retained to represent the employer or the alien in the process. Labor Certification applications can technically be filed only by the employer, not the employee. Accordingly, in filing a labor certification application, the employer will need to provide the appropriate authorization to legal counsel.
The application for labor certification involves contact and negotiation with three separate governmental agencies: the State Employment Services Bureau, the United State Department of Labor, and the Immigration and Naturalization Service. All of these agencies have various roles to play in the process.
First, the respective state employment services bureau must be contacted with preliminary information regarding the employer and the alien sought to be employed. The state employment services bureau will review the job description and other pertinent information and arrive at a determination of the “prevailing wage” for the job. This wage must be paid to the employee if the labor certification application is to be approved. Following review by the state employment services bureau, the job must be advertised and posted in order that applicants may contact the employer and schedule interviews. The thrust of the labor certification process is to ensure that no U.S. citizen is denied a job due to the hiring of an alien. Accordingly, it is up to the employer to screen candidates for the job and evaluate their credentials in light of this fact.
Upon completion of the interviewing process, the United States Department of Labor must be contacted with the interview results in order for the labor certification to be issued. Upon review and approval of the interview results and procedures followed by the employer, the U.S. DOL will issue a labor certification. That labor certification does not mean that the alien has now acquired the ability to live and work on a permanent basis in the U.S.A.
That final step is accomplished by filing an application for permanent residency – commonly known as the “Green Card” process – with the United States Immigration and Naturalization Service.
On a cumulative basis, the entire labor certification process, from the time that the application is filed with the state employment services bureau to the time that the “Green Card” is issued by the INS, takes approximately two to three years. In the interim, the employee may continue to work for the employer on his or her H-1 Visa status, and the H-1 Visa may be extended for additional periods of time if so required