Basic Labor Certification Applications for Researchers and Other Non-Teaching Positions

It is possible for the University to obtain permanent residency for a researcher and other non-teaching positions under the basic labor certification process.

Labor certification is essentially a determination and certification by the Secretary of Labor that there are not sufficient workers who are able, willing, qualified to do the work needed and the employment of aliens will not adversely affect the wages and working conditions of the workers in the U.S. similarly employed. To qualify for a labor certification, the regulations require an employer to prove its good faith efforts to recruit US workers without success through specific recruitment sources.

The labor certification process will involve 3 steps:

1. Labor certification filed with the Department of Labor
2. Upon receiving the labor certification, the University will file for an immigrant visa to be made available to the international hire on form I-140
3. The international hire will then file for permanent residence upon approval of the I-140 (step 2). It is possible to file for permanent residence concurrently with step 2; consult with ISSS on the pros and cons of concurrent filing.

THE ADVERTISMENT FOR A NON-TEACHING POSITION NEEDS SPECIAL ATTENTION. Consult with an adviser in ISSS.

Departments should follow these procedures:

1. Draft an advertisement for the position and have it reviewed by International Student and Scholar Services (and by the Affirmative Action office for compliance with their requirements). The advertisement must have the following elements:
   • Name of the employer.
   • Direct applicants to send resumes to the employer.
   • Description of the vacancy specific enough to apprise US workers of the job opportunity for which certification is sought.
   • Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.
   • The job offer and minimum requirements may not be described with "unduly restrictive" job requirements and we must be prepared to justify any requirements if asked to do so.
   • If a preference is stated in the advertisement, the Department of Labor will treat that preference as a requirement, and we must be prepared to justify it as a requirement; therefore, we suggest that such advertising not state preferences, but be restricted to minimum job requirements.
   • Since the job opportunity must be kept open to any qualified U.S. worker throughout the labor certification process, the advertisement may not state a deadline for application. We realize that having no deadline in the application is out of the ordinary. These are Department of Labor regulations over which we have no control.
     The job offer must be kept open and available to other applicants until the labor certification is approved. Until then, departments must continue to consider applicants as they apply, must keep records on those applicants, and must be prepared to show why each of the US worker applicants is not minimally qualified for the position as described in the advertisements.
     

 

2. The Dept. of Labor has specific recruitment steps that must be followed, including the placement of a Job Order with the State Workforce Agency (SWA), and posting of the advertisment in 2 Sunday newspapers of general circulation. In addition, departments must undergo three additional recruitment steps. ISSS will provide departments with more information about recruitment.
   
   
3. After the recruitment period (which cannot be more than 180 days prior to filing of the labor certification):

if no minimally qualified U.S. workers have applied for or are available for the position, the department may prepare for submission to International Student and Scholar Services the following documents to make up the labor certification application:

• Copies of all recruitment efforts undertaken (tear sheets from newspapers, copies of website where the ad appeared in, etc.)

 

• Copies of all applicants' resumes

 

• a copy of the final candidate's highest diploma, curriculum vita, list of publications, and letters of recommendation. Any documents in a language other than English (including Latin) must be accompanied by an English translation certified by the translator as to the accuracy of the translation and his/her ability to translate. A signed statement as follows is sufficient for this purpose: "I am familiar with the English and the _____ languages and I certify that this is a true and complete translation of _____(type of document)." Copies of the documents are acceptable.
  
  
• A recruitment report signed by the department chair or responsible faculty member (one who has hiring authority) describing all of the recruitment efforts, identifying all of the recruitment sources used, and describing the results of the advertising and recruitment efforts. The statement must specifically state the number of U.S. workers who responded to the recruitment efforts, the number of interviews conducted with U.S. workers, and the "lawful job-related reasons for not hiring each U.S. worker interviewed."

 

• Letter from the Vice-Chancellor for Research, stating that the position is "permanent".
  
  
• A copy of the contract between the University and the scholar, if one exists.
  
  
• A copy of the notice that an application for permanent alien employment certification has been applied for by the University. (ISSS will provide this notice to the department.) This notice must be placed in a conspicuous location in the department for ten business days.

When this information in satisfactory form is received at ISSS, we will submit the application for labor certification via the web.

The Department of Labor's Certifying Officer will then decide upon the labor certification application. NOTE: This is a new process that will begin on March 28, 2005, and we are unsure how long processing time will be.

It is possible that the Dept. of Labor will request an audit of the application, or may require the employer to conduct more supervised recruitment.

Negative Findings

If the final decision of the Certifying Office is to deny the labor certification the denial notice will state the reasons for the denial. The University may appeal a denial decision through an elaborate administrative/judicial review procedure. The University will do so only with the approval of the Vice Chancellor for Academic Affairs and on the advice and with the assistance of the University Counsel. Once a negative decision is final, the University may file a new application for labor certification for the same position but only after a period of six months has passed from the date of the Certifying Officer's decision.

If the Certifying Office approves our application, he or she will notify the University through ISSS. We'll certainly let the department and the alien know the results as soon as we know them.

Procedures Following Labor Certification

Once the Department of Labor has approved the application for labor certification, the University can petition the US Citizenship and Immigration Services on behalf of the alien. This is done by filing a Form I-140 with the approval of the labor certification, appropriate supporting documentation and a check for $475 ($580 after 11/23/2010) made payable to the "USCIS" . This part of the process is called a second preference petition. The word "second" refers to the organizational scheme of the Immigration and Naturalization Act; it is not a lesser kind of green card. All green cards are the same, all confer the same benefits. Only the paths to those green cards are different.

We reiterate the caution to scholars and departments that the scholar must have been awarded his or her degree (if it is a requirement for the position) before the University can file the I-140. The University often hires individuals who have completed all the requirements for their Ph.D. degree except for submission of their dissertation. The completion of the dissertation is sometimes shuffled to the back of the scholar's priorities during his or her first year of teaching or research. Time passes and the degree isn't awarded as promptly as everyone might have wished. While the department may allow the scholar some leeway in this regard, the US Citizenship and Immigration Services is not so open-minded. The time limit for filing for teaching positions is l8 months from the date of offer; for non-teaching positions the limit is 6 months from the date of offer.

The approval by USCIS of the I-140 is currently taking up to a year. This varies depending on the work load at the USCIS Northern Service Center. Please consult ISSS for tracking information. Please note that ISSS does not track these petitions for the department or the scholar since tracking information is available to the public on the USCIS website.