| The United States Department of Labor (DOL) is required to pass on applications for labor certification relating to immigrants in some of the employment-based categories. One of the two findings the DOL must make to warrant certification is that sufficient native workers do not exist at the place of an alien's intended employment, thus, warranting the employment of alien labor. This can be a complex determination, involving some general criteria, as well as business necessities related to the particular job. This article discusses general criteria that, in the exercise of discretion, the DOL considers when deciding whether adequate U.S. workers are available.
Before the merits of an application will be considered, the DOL ensures that it is complete and that all of the requisite documents are attached. If the application is not proper, it may be denied on that ground alone. However, when all of the attachments are available and all relevant procedures were followed, the DOL next considers whether U.S. workers are available to do the job.
Finding that this criterion is met requires the DOL to find that an insufficient number of U.S. workers exist for the job that meet four requirements: (1) able to do the job; (2) willing to do the job; (3) available to do the job; and (4) qualified to do the job. To determine whether sufficient workers exist who are able and qualified, the DOL considers the education, training, and experience of U.S. workers in similar jobs. An employer cannot reject potential U.S. workers for other than job-related reasons. Examples of legitimate reasons include the failure to meet minimum qualifications or to have favorable work references. Discriminatory reasons, such as marital status, race, and religion, cannot be used to reject native workers.
Regional certifying officers, who actually make the determinations regarding sufficient U.S. workers on behalf of the DOL, use both employer-specific information and more general DOL information. Employers submit documents that illustrate their minimum job requirements, that show their attempts to hire U.S. workers, and that detail the types of workers they have previously hired. Additionally, the DOL uses its own data about the nature of the training, education, and experience that is needed to perform different jobs.
The DOL reviews the prospective employer's attempts to recruit U.S. workers when evaluating whether U.S. workers are willing to accept a job. Native workers are not considered able and qualified if they will not accept the employer's starting wage. Furthermore, an employer may not take a native's word that he or she will not accept a starting wage. Instead, the employer must offer the job at the salary offered.
In submitting information for the DOL's consideration, employers should document not only the nature of the job for which alien labor is allegedly needed but also any business necessities that require special consideration. The failure to do so sometimes results in the DOL finding that the employer's job requirements are unduly restrictive, culminating in a finding that sufficient U.S. workers exist and that alien labor is unnecessary. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |