Labor Certification

OUTLINE OF TEMPORARY LABOR CERTIFICATION PROCESS  

Preparation of Application
   
First, the Employer commences the process by preparing an offer of employment on Form ETA 750A. On this form, the employer discloses the working conditions for the Job Opportunity, including particulars on (a) the place of employment; (b) the hours to be worked per week; (c) the proposed work schedule; and (d) the rate of pay. The Form ETA 750 sets forth a description for the Job Opportunity, and the minimum experience requirements (if any). Once the Form ETA 750 is completed and all the supporting documentation is assembled, the Temporary Labor Certification Application is then filed with the local Job Service of the State Department of Labor.

Post-Filing Procedures

Upon receipt of the Temporary Labor Certification Application, the local Job Service determines if Job Opportunity meets “Prevailing Wage” requirements, and notifies Employer of the determination by letter. In the same letter, the Job Service authorizes the Employer to recruit for the Job Opportunity.

Department of Labor regulations require that a position in the “Green Industry” be advertised by the Employer in a newspaper of general circulation for three consecutive days, one of which is usually required to be a Sunday. Concurrently, the Job Service runs a computer search to locate qualified Applicants through the State Department of Labor employment database.

Processing Applications

The Job Service collects résumés from all Applicants responding to the Want Ad or computer search for a ten-day period, and will usually forward the résumés to the Employer during this time. The Employer collects the résumés from all Applicants responding to the Recruitment activities during the ten-day period, and normally contacts Applicants by Certified Letter to arrange an “in person” job interview. Typically, the Employer follows-up with another Certified Letter and telephone contact if Applicant does not respond, and subsequently interviews all Applicants for whom appointments were arranged. Those Applicants who cannot appear at the Employer’s place of business are often interviewed on the telephone.

After the interviews are completed, the Employer is required to send a response to all of the Applications received from the Job Service. The Employer rejects clearly unqualified or unavailable Applicants by letter no later than 10 days after receipt of the résumé, or offers employment to all qualified or available Applicants in writing. It is important to note that the Recruitment Period ends (or in the jargon of Labor Certification, the Job Order “closes”) 10 days after the initial date of the publication of the Want Ad.

Wrap-Up Procedures

At the conclusion of the 10 day Recruitment period, the Job Service notifies the Employer that the Job Order has closed. At this time, the preparation of a “Wrap-Up” Report of Recruitment Efforts and Procedures begins, consisting of (1) an Attorney letter, containing: (a) multiple copies of the Want Ad (“Tear Sheets”), showing the title of publication and date published; (b) a Sufficiency of Recruitment Summary; (c) all of the Recruitment Results; and (d) the Qualifications of Alien (if necessary); and (2) an Employer Affidavit, reciting: (a) the Requirements for Job Opportunity; (b) the Recruitment Procedures; (c) the Recruitment Results; (d) a Summary Sheet, detailing job related reasons for rejecting unqualified Applicants; and (e) the original résumés of all Applicants responding to Recruitment Effort.

Once completed, the Wrap-Up Materials are submitted to the local Job Service within 30 days of the date that the original Temporary Labor Certification was filed. After the Wrap-Up Report is received, the Job Service reviews all the materials received, and if they are fully compliant, the completed Temporary Labor Certification Application is sent to the State Job Service Office for yet another review. The State Job Service reviews the materials one more time, and if they are once again determined to be fully compliant, the Application is forwarded to the regional U.S. Department of Labor Certifying Officer for adjudication.

U.S. Department of Labor Adjudication

If approved, the Application is Certified, and the Employer is then eligible to submit an H-2B Nonimmigrant Visa Petition to United States Citizenship and Immigration Services. If the Application is not certified, the Department of Labor issues a “Final Determination”, denying the Application. The Employer may then file an H-2B Nonimmigrant Visa Petition with United States Citizenship and Immigration Services to reverse determination of Department of Labor. If the Petition is approved, the Labor Certification is deemed to be valid; if the Petition is not approved, the Labor Certification is deemed to be denied.

Copyright (c), Arthur C. Carr III, Attorney at Law