Factors to Consider When Filing a Labor Certification
The purpose of the labor certification process is to protect United States workers. It was not developed to assist an employer in filling a particular position. Even though an international worker is actually occupying the position for which the labor certification will be filed, the employer must conduct a bona fide recruitment campaign to "test" the labor market and attempt to recruit U.S. workers. It is important that employers are aware of all of the factors that must be considered in the labor certification process:
Uniqueness of the labor certification recruitment requirements
- Under the labor certification process, employment and recruitment procedures must be conducted differently from the way they are conducted in the actual business world. In the real world, the goal of the employer is to hire the person most qualified for the job. Under the basic labor certification process (referred to as "standard" recruitment) applicants only need to meet the minimum qualifications of the job in order to be considered for the position and can only be eliminated from consideration for bona fide business-related reasons.
- In the real world, the salary offered to a candidate is based on factors such as the market, type of employer, qualifications of the candidate, etc. Under the labor certification process, the employer must offer a salary that is at least at the level of the prevailing wage for the occupation in the area of intended employment.
- With the labor certification process, the employer is required to take specific recruitment steps that go beyond the effort that most employers would normally take to recruit U.S. workers.
The job opportunity
- The position in question must be full-time and permanent in the sense that it does not have a specific termination point based on an ending date or a project/assignment; it is not seasonal or intermittent; and it is not presently intended or contemplated that the job will definitely end at some point in the future.
- The employer must pay the current prevailing wage for the position.
- There must be a bona fide job opportunity.
Job duties and minimum requirements
When advertising the job opportunity, the sponsoring department must accurately describe the essential functions, duties, responsibilities, and minimum requirements of the job utilizing the official job description on file in the Department of Human Resources. The Department of Labor (DOL) will compare the UMC job description and minimum requirements to those of a comparable position in the DOL's Occupational Information Network (referred to as O*NET). O*NET is a comprehensive database of attributes and job characteristics. The DOL will check to ensure that the job's minimum requirements are in line with the minimum requirements established in O*NET. If UMMC's job requirements are more stringent than O*NET requirements, it will be necessary to provide a detailed explanation of business necessity for the additional requirements.
In conducting the recruitment steps required in the labor certification process (newspaper and journal advertisements, posting notices, etc.), it is imperative that the actual minimum requirements for the job be used. The minimum requirements cannot be altered in such a manner that they "mirror" the qualifications of the international worker.
The international worker must have met the actual minimum requirements for the job at the time he/she was hired. Additionally, the department must not have hired any other employees for jobs substantially comparable to that of the international worker using less than the actual minimum requirements.