Labor certification is a procedure required of United States (U.S.) employers who want to hire foreign, non-immigrant employees on a permanent basis. This process is frequently the first step in setting up the employer to sponsor the worker so he or she can get a green card and legally work in the country. Sponsorship and attaining this status are complex processes that normally take years to complete.
To obtain a labor certification, the employer is typically required to prove that the job being offered to the foreign employee cannot be performed by any locally available U.S. citizen. This is ordinarily a difficult claim to substantiate. If any U.S. citizen in the area is available with even minimal qualifications for the position, the application, by law, must be denied.
The foreign worker can still work under the terms of the agreement that apply to temporary employment until that contract expires. The worker may repeatedly reapply for permanent status. This labor certification practice is typically viewed as protective of U.S. workers, but is often seen as a tedious procedure by many employers.
This practice, like many regulations related to immigration and foreign workers, is generally controversial. Supporters of the process claim it protects jobs that can be satisfactorily performed by U.S. citizens from being filled by foreign workers who might accept a lower wage for the job. Those who oppose the labor certification practice maintain that employers will finagle the program to meet their needs. Many critics claim this can be accomplished by the employer fine-tuning the job description to the qualifications of the foreign employee, thus rendering the job undoable by anyone else.
In actuality, the latter option is more difficult than it sounds. The employer’s job description must follow stringent guidelines imposed by the Code of Federal Regulations as set forth by the U.S. Department of Labor that clearly outline what requirements are suitable for certain jobs. If the employer manages to meet these conditions in the explanation of the job, he or she must still prove no other highly comparable jobs have been awarded to less qualified applicants.
The original labor certification guidelines required an employer to prepare an acceptable job description prior to the job being publicly offered. This procedure was revised in 1998. At that time, the order of requirement was virtually reversed to mandate that the employer first recruited for the position and then formulated a statement to indicate why no U.S. workers were qualified for the available position.