Coming to Work in the United States: Labor Certification

Employers who want to get U.S. residency for foreign workers must first get a labor certification.

Foreign workers may obtain green cards to come to the United States only if their potential U.S. employer can prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification." (The requirements are much less for foreign workers seeking to enter the U.S. on temporary, nonimmigrant visas, such as H-1Bs and H-2Bs, which are not covered here.)

New Procedures for Labor Certification

The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.

Request Prevailing Wage Determination

Under the new procedures, the first step is for your employer to approach the state workforce agency (SWA) serving the state where your employer's office is located. Your employer must request what's called a "prevailing wage determination" (PWD), which will indicate how much is normally paid to people in jobs equivalent to the one you've been offered. Each U.S. state has its own form for making this request. Finding out the prevailing wage is important because your employer must offer you 100% or more of the prevailing wage -- a change from the 95% that was acceptable before the new, 2005 regulations.

Recruit in the U.S.

Next, your prospective employer can begin recruiting for the job in the United States. (Actually, your employer can start recruiting before this, but must make sure to offer a salary that's at least as high as the prevailing wage.) The Department of Labor regulations spell out strict rules for recruiting. For example, your employer must announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the regulation.

File Labor Certification Application Form

If, after the recruiting has been completed, your employer has not found a qualified, willing, available, and able American to take the job, it can submit the labor certification application to the U.S. Department of Labor (DOL). The application involves completing a ten-page DOL form (ETA-9089), available on the DOL website atwww.workforcesecurity.doleta.gov/foreign. No supporting documents need be submitted, though they must be available in case DOL requests them.

The DOL is supposed to make a decision on the labor certification within 45 to 60 days.

Next Step: Apply for Green Card

Only after your labor certification is approved can you apply for a green card, either through a procedure called adjustment of status (if you're legally in the United States) or consular processing (if you're overseas).

Exceptions to Labor Certification Requirement

Employers of workers in the following categories need not file the labor certification form before the worker applies for a green card. These exceptions to the labor certification requirement include:

• workers in what is called the "employment first preference," including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
• millionaire entrepreneur immigrants ("employment fifth preference")
• religious workers coming as "special immigrants" ("employment fourth preference"), and
• people whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes a shortage of such workers.

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