Better Understanding Labor Certification
Any immigrant wishing to come and work in the United States should be aware of the labor certification requirement. Labor certification requirements vary upon the type of immigration. Those wishing to gain permanent resident status through the employment-based preferences will generally face a more stringent version of labor certification. Those immigrating only temporarily will face a less onerous labor certification.
Labor certification is required for several employment-based preferences. The first of these is the second preference, reserved for immigrants who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. Those qualifying for a national interest waiver under the second preference will be exempt from the labor certification requirement. The other principal employment-based preference requiring labor certification is the third preference, reserved for professionals, skilled workers, and other workers.
What is Labor Certification?
Currently, the law presumes that foreign workers are unnecessary. Thus, in an effort to protect the domestic workforce, immigration authorities require employers of foreign workers to submit a labor certification to the Department of Labor (“DOL”). The labor certification has two stated purposes which must be satisfied before the DOL will issue the certification. These are outlined in INA §212(a)(5)(i). First, the labor certification assures the DOL that “there are not sufficient workers who are able, willing, qualified and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor.” Second, “the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.”
Basically, the law presumes that if an employer has a choice between two qualified, potential workers, one foreign and one domestic, the employer should hire the domestic worker. Note that this is true even if the two workers are equally qualified, unless the worker fits into one of the categories described below. The employer may only hire the foreign worker if he can demonstrate to the DOL that he has unsuccessfully tried to find a qualified domestic worker in his area.
Equally Qualified Exception
There are some instances where an employer, when facing a choice between two equally qualified workers (one foreign, one domestic), may hire a foreign worker. INA §212(a)(5)(ii) allows for equally qualified workers if they are a “member of the teaching profession” or “[have] exceptional ability in the sciences or the arts.” Be aware that this does not mean the labor certification requirement is waived. It is still required, but the burden of proof on the applicant and employer is lessened. One argument in support of the equally qualified exception for these particular categories is that it increases the level of expertise demanded of American teachers and professors.