LABOR CERTIFICATION FOR THE PERMANENT
EMPLOYMENT OF FOREIGN NATIONALS AT TEXAS
A&M UNIVERSITY
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What is the Labor Certification
process?
Printable Version
The Labor Certification process in
essence is a test of the labor market
that the employer must conduct to
demonstrate to the Department of Labor
that (20 CFR §656.2(c)):
(i)
There are not sufficient U.S. workers
who are able, willing, qualified, and
available at the time of the application
for a visa and admission to the U.S. and
at the place where the alien is to
perform such skilled or unskilled labor;
and
(ii)
The employment of such alien will not
adversely affect the wages and working
conditions of workers in the U.S. who
are similarly employed
This process is a requisite embodied in
the Immigration and Nationally Act which
establishes that any foreign national
who seeks admission or status as an
immigrant for the purpose of employment
may not be admitted unless a Labor
Certification has been approved.
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What types of Labor Certification
processes are available in the
university?
In the university setting there are two
types of Labor Certifications available:
(1) Regular Labor Certification,
for professional occupations (members of
the profession holding an advanced
degree or skilled workers,
professionals) which consists of the
placement of a job order with the Texas
Workforce Commission, an advertisement
on two different Sundays in the
newspaper of general circulation in the
area of intended employment, complying
with three additional recruitment steps
and the posting of notice of job
availability. After the appropriate
review of applications and interviews of
applicants the employer may apply to the
Department of Labor for a Labor
Certification if the foreign national
has been found to be the only applicant
to meet the minimum qualifications for
the position.
(2) Special Handling for faculty
members with actual classroom teaching
which
allows the university to file a Labor
Certification application with the
Department of Labor provided a
competitive recruitment and selection
process has taken place. Such filing
must take place within 18 months from
the date the offer letter was written.
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How does the Labor Certification fit within the Permanent
Residence Process?
Within the permanent residence process,
the Labor Certification is the necessary
first step that the employer must
undergo in instances in which the
foreign national employee does not
qualify under the Labor Certification
exempt Employment Based 1st
Preference immigrant category.
As a result, labor certifications are a
requirement for foreign nationals who
fall under the Employment Based 2nd
(members
of the profession holding an advanced
degree)
and 3rd Preference categories (skilled
workers, professionals),
and consequently in the academic
setting:
·
Do not qualify under the Outstanding Professor or
Researcher Employment Based 1st
Preference (exempt from the Labor
Certification)
·
Hold an advanced degree (Ph.D. or Masters) which
is a requirement for the position (2nd
Preference)
·
Hold a Bachelor’s degree and such is a
requirement for the position (3rd
Preference)
However, there are situations in the academic setting in
which the international faculty member
qualifies under the Outstanding
Professor or Researcher 1st
Preference category but the employer
opts to file a Labor Certification under
the Special Handling option.
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What is the Regular Labor Certification Process?
The regular Labor Certification process
is mandated under 20 CFR
§656.17 and it’s
used for members of the profession
holding an advanced degree or skilled
workers, professionals found to be the
only applicant to meet the minimum
qualifications for the position.
Typical positions that qualify under
these categories are research and
professional staff positions.
The regular Labor Certification process,
in a nutshell, consists of the
following:
(A) Two mandatory steps:
1.
Job order with Texas Workforce
Commission (TWC) by which the university
will need to place the job posting on
TWC's website for 30 days. Once it is
posted on TWC's website, keep a record
of the date it went up.
2.
An advertisement on two different
Sundays in the newspaper of general
circulation in the area of intended
employment
(B) Additional recruitment steps:
·
The university will need to include
the job postings on its website. Keep a
record of the date the posting went up.
·
Notice of
filing an Application under the
Permanent Labor Certification Program
which needs to
be posted for 10 business days. After
the ten days, please complete the bottom
and return the form back to our office.
Please note that if the university uses
any type of in-house media, such as
intranet, newsletter, etc. for
recruiting, this posting must also be
included in such.
·
Three additional recruitment steps
must be selected from the alternatives
listed below. Only one of the additional
steps may consist solely of activity
that took place within 30 days of filing
the
Labor Certification.
None of the steps may have taken place
more than 180 days prior to the filing
of the
Labor Certification:
(a)
Job fairs
(b)
Employer’s website
(c)
Job search website other than the
employer’s
(d)
On-campus recruiting
(e)
Trade or professional organizations
(f)
Private employment firms
(g)
Employee referral program with
incentives
(h)
Campus placement offices
(i)
Local and ethnic newspapers
(j)
Radio and television advertisements
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What is the Special Handling Process?
Special Handling is an optional Labor
Certification process that is allowed
under CFR 20 §656.18 for college and
university teachers. It only applies
to faculty members who have actual
classroom teaching assignments and
who were selected for the job
opportunity in a competitive recruitment
and selection process through which the
faculty member was found to be more
qualified than any of the U.S.
workers who applied for the job.
The competitive recruitment and
selection process must be documented
and must include:
(1)
A statement, signed by an official who
has actual hiring authority from the
employer outlining in detail the
competitive recruitment procedures
undertaken; and which must set forth:
(i)
The total number of applicants for the job
opportunity;
(ii)
The specific lawful job-related reasons why the
faculty member is more qualified than
each United States worker who applied
for the job
(2)
A final report of the faculty, student,
and/or administrative body making the
recommendation or selection of the
international faculty member at the
completion of the competitive
recruitment and selection process;
(3)
A copy of at least one advertisement for
the job opportunity placed in a national
professional journal, giving the name
and the date(s) of publication and which
states the job title, duties and
requirements;
(4)
Evidence of all other recruitment
sources utilized
(5)
A written statement attesting to the
degree of the alien’s educational or
professional qualifications and academic
achievements; and
(6)
Notice of the Filing of an Application
under the Permanent Employment
Certification Program which must be
provided between 30 and 180 days before
filing the application
See Instructions on Documentation for Special
Handling at:
http://ifss.tamu.edu/pdf/IFSS_word_doc/DOCUMENTATION_FOR_SPECIAL_HANDLING_ALIEN_LABOR_CERTIFICATIONS.doc
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Under Special Handling does the advertisement for the job
opportunity need to be placed in a
printed journal?
Yes, the advertisement needs to be printed in a
national professional journal and state
the job title, duties and requirements.
Accordingly, if the advertisement was
only published electronically a Special
Handling application cannot be filed.
Printed advertisements are a must.
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What is a Notice of Filing an Application under the U.S.
Dept. of Labor’s Permanent Labor
Certification Program?
The employer is required under
CFR 20 §656.10(d)(ii) to post
notice of Filing an Application
under the Permanent Labor Certification
Program to the employees at the facility
or location of the employment for at
least 10 consecutive business days. The
notice must be clearly visible and
unobstructed while posted and must be
posted in conspicuous places where the
employer’s U.S. workers can readily read
the posted notice on their way to or
from their place of employment.
Appropriate locations for posting
notices of the job opportunity include
locations in the immediate vicinity of
the wage and hour notices or
occupational safety and health notices.
In addition, the employer must
publish notice of filing an
application under the Permanent Labor
Certification program using in-house
media, whether electronic or printed in
accordance with the normal procedures
used for the recruitment of similar
positions.
Complying with this requirement is of
utmost importance and hiring
departments should ensure that the
notice is properly posted as well as
published.
See Notice of Posting & Instructions at:
http://ifss.tamu.edu/pdf/IFSS_word_doc/NOTICE%20OF%20JOB%20POSTING%2012-07.doc
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When can a Special Handling application be filed?
A Special Handling Labor Certification
application must be filed within
the first 18 months after the selection
of the faculty member has been made.
Such selection is reflected in the offer
letter and the 18 months start counting
from the date of the offer letter. Note
that the 18 months are comprehensive of
a required 30-day waiting period from
the date the Notice of Filing an
Application under the Permanent Labor
Certification Program is removed. This
means that before filing the Labor
Certification application we need to
wait 30 days after the posting has been
removed. Waiting until the last month to
start the process is not recommended
since this could cause the mandatory
posting and waiting times to go beyond
the 18-month filing deadline and bar the
filing of the application. As a result,
for all practical purposes the filing
deadline should be set 60 days prior to
the expiration of the 18 month period.
Ø What if more than 18 months have passed since the
faculty member was selected?
If more than 18 months have passed the
International Faculty & Scholar Service
cannot file an application under Special
Handling. Accordingly, the hiring
department may:
·
Retest the labor market by redoing the entire
competitive recruitment and selection
process and have the faculty member
apply for the position,
·
Have the International Faculty & Scholar Service
assess whether the faculty member may
qualify under the Outstanding Professor
or Researcher category,
·
If too early in the tenure track process, opt to
wait several years until the faculty
member has reached a degree of
accomplishments where he/she can be
sponsored under the Outstanding
Professor Researcher category
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How long do I need to keep the records pertaining to the
competitive recruitment and selection
process?
All records documenting the competitive
recruitment and selection process of an
international faculty member for which a
Labor Certification has been filed under
the Special Handling option must
be kept for 5 years from the date of
filing the application.
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Is the faculty member a permanent resident after the
Special Handling Labor Certification is
approved?
The Labor Certification process is the
first of three steps towards achieving
Permanent Residence. After the Labor
Certification is approved, an immigrant
petition (I-140) will need to be filed
on the basis of the approved Labor
Certification. The third and last step
is the adjustment of status petition
which can be filed concurrently by the
employee with the immigrant petition or
thereafter.
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Where can I find sample forms for the Special Handling
process?
You can find all necessary sample forms
and instructions in the International
Faculty & Scholar Service website at the
following link:
http://ifss.tamu.edu/ImmigrantForms.asp
