By James A. Bach, Esq.*
A labor certification is a determination by the
Department of Labor (DOL) that there is a shortage of
American workers for a particular job. It is based on the
unsuccessful recruitment of U.S. workers.
Like your tax return, a labor certification application
is processed on a "post-audit" basis. That is, it may be
approved (just like your tax refund is issued), but the DOL
can audit and disallow the labor certification at any time
within five years of the approval.
Many labor certification applications are also audited
before approval. Two major areas of inquiry in both pre-
and post-approval audits are 1) whether the minimum job
requirements are excessive, and 2) whether U.S. workers were
Minimum Job Requirements
The minimum job requirements will be used to determine if
any of the applicants who respond to the required
recruitment are qualified for the job to be certified.
Because the minimum requirements can be used as a basis for
rejecting U.S. workers, they are subject to particular
scrutiny by the DOL. In addition, there have been many
administrative appellate decisions that discuss whether
specific job requirements are justifiable.
There are many aspects to the DOL consideration of the
minimum job requirements, including the following:
- Each requirement be justified in terms of "business
necessity." "Business necessity" essentially requires that
the required background is necessary in order for an
employee to adequately perform the job duties.
- The requirements cannot be "tailored" to the
immigrant’s background, but must reflect the company's
actual, normal minimum requirements for the job.
- There should be consistency with past labor
certification applications for the same position.
- Minimum requirements cannot include skills that can be
learned after a short period of on-the-job training.
- The requirements cannot be subjective, but must
provide an objective measure that can be applied to the
job applicants who respond to the recruitment. A
requirement like "good communication skills" would not be
- Only the most important skills can be included as
minimum requirements. The DOL will normally reject a long
list of technical requirements.
- An ability to speak a foreign language is almost never
acceptable. However, there may be an exception where the
employee will speak that language most of the time, or
where there are safety reasons for the language (such as
to provide safety training to other employees who do not
- The employer must certify that it has not previously
hired workers for a comparable position with less
education and experience.
In most cases, the sponsored immigrant must also be able
to prove that her or she met each of the minimum
requirements before starting the job to be certified.
Ordinarily that proof consists of letters from former
employers and college transcripts. Proof that the immigrant
meets the minimum requirements must be gathered before
filing the labor certification, and ideally before starting
the recruitment. Otherwise the employer runs the risk of
wasting time and money to get a labor certification that
cannot be turned into a green card because the employee
cannot get proof of required prior experience.
Much of a proper analysis of the minimum requirements
comes down to common sense. The DOL will attempt to
determine whether the requirements are reasonable, or
whether they are fabricated solely to prove that only the
present employee is qualified.
Rejecting Job Applicants
The minimum requirements will be applied to potential
candidates who respond to the ads to determine whether they
are qualified. However, they are not the only measure
whether they are qualified. The regulations permit rejection
of candidates for "lawful job related reasons". In addition
to failure to meet the minimum (and justifiable) job
requirements, the following reasons may be sufficient to
reject a candidate:
- The candidate does not have a permanent right to
remain in the U.S. That would include those who have the
temporary right to work in a nonimmigrant status such as
F-1, H-1B, or L-1 status. It would also include those who
are out of status, or who have applied for but have not
been granted a permanent status. Only U.S. citizens,
permanent residents, political asylees, and refugees need
be considered. Everyone else can be summarily rejected,
without inquiry into whether or not they are qualified to
do the job. That should therefore be the first question
asked. To avoid potential liability for discrimination,
the form of the question should be, "Do you have the right
to work permanently in the United States?"
- The applicant is no longer interested in the job after
finding out more about it. However, employers must be
careful about discouraging qualified U.S. workers.
- The applicant wants a higher salary than that offered.
However, the employer cannot assume that the applicant
will not accept the salary offered simply because he or
she has commanded a higher salary in the past, or has
qualifications that exceed the minimum requirements. The
applicant should be asked, "Would you accept the job at
- The applicant cannot produce adequate references (if
the employer normally requires references), or cannot pass
a drug test (if the employer normally conducts drug
- The applicant has a criminal background, or has been
fired for poor performance.
There may be other lawful reasons for rejecting a
candidate, and those must be determined on a case-by-case
basis. Essentially, the recruitment must be conducted in
good faith. That means that all applicants must be
considered, and cannot be rejected unfairly. All interviews
and other interaction with the applicants should be
conducted with the expectation that the DOL will contact the
applicant to find out if he or she was fairly considered for
the position, and not discouraged from accepting the job.
Generally, all applicants should be interviewed. If they
are not interviewed the DOL may conclude that they were not
fairly considered. Interviews do not have to be conducted in
person, but can be by telephone. The interviews do not have
to be long, and often can be just minute or two (for
example, long enough to determine that the applicant does
not have the right to work permanently in the U.S.). It is
usually not proper to reject a candidate based on the résumé
alone. The DOL assumes that the résumé may not include all
of the background and qualifications of the candidate.
However, in some circumstances, such as where it is clear
that the candidate does not have a required college degree,
or lacks sufficient experience, a determination can be made
without an interview. Notes should be kept of the time, date
and content of the interviews.
Good faith recruitment also involves contacting
applicants as soon as possible, ideally within a day or two
of receiving the résumé or letter of application. The labor
certification can be denied if a qualified applicant is not
contacted quickly, because it is unreasonable for a job
applicant to wait several weeks for a response. They will
assume that the job is no longer available, and may seek
If the applicant cannot be reached by telephone or email,
a letter should be send to the address on the résumé as soon
as possible by certified mail. That letter should provide a
telephone number, times and days to call, and ask the
applicant to telephone.
Labor certifications are most commonly denied because the
job requirements are too restrictive, or because job
applicants are unfairly rejected. Care is required to ensure
that the job requirements are reasonable and ordinary, and
that the applicants are properly considered. Just like your
tax return, a labor certification should be prepared as
though it is certain to be audited, and applicants should be
interviewed as though it is certain that the DOL will