Labor Certification
The first step in filing a petition for an immigrant visa is usually the labor certification. The labor certification is meant to make sure that there are no qualified U.S. workers ready, willing and available to fill the job. This process prevents the employer from undercutting the salary normally paid to a U.S. worker by hiring a foreign worker at a lower wage.
There are essentially three required activities that an employer must do before filing. They are: (1) to request a prevailing wage determination; (2) to engage in certain recruitment activities as a test of the U.S. labor market; and (3) to post a notice of filing for the benefit of the employer’s U.S. employees.
Preparation
Before engaging in the required activities, the employer would be wise to do some preparation work. The employer should consider the position requirements. That is, what duties will the employee be required to do. What kind of experience, training and education will the employee need for the job?
Prevailing Wage Determination
The first step in the process is to file for a prevailing wage determination ("PWD") from the state workforce agency ("SWA"). The PWD will tell the employer the salary that the employer must offer in order to qualify for the labor certification. That is, the employer must be willing to pay the new employee at least the amount stated in the PWD. The PWD will be valid for at least 90 days, and may be valid for as long as 365 days. Each SWA is free to adopt its own procedures concerning the length of validity of the PWD.
Recruitment Activities
Before filing for the labor certification, the employer must place a job order with the SWA, and place two advertisements in the Sunday edition of a local newspaper of general circulation. If the position is a professional one, then the employer has additional recruitment requirements. A professional job is generally one that requires a bachelor’s degree or higher.
Notice of Filing
Finally, the employer must post a notice of filing for the benefit of its current U.S. employees. This gives the U.S. employees notice of the open position, and the ability to object to the granting of the labor certification and the hiring of a foreign worker.
