Labor Certification Procedures for Researchers and Other Non-Teaching Positions
Employment-based sponsorship for permanent residency is an employer-driven process. A department will only consider sponsoring positions for permanent residency if the positions are eligible for such sponsorship and it is clearly demonstrated to be in the best interest of the department to do so. Each department will determine in its sole discretion whether or not to sponsor a foreign national. OP 70.38: Employment-based Permanent Residency Petitions must be reviewed in determining sponsorship eligibility.
Labor certification is essentially a determination and certification by the U.S. Department of Labor that there are not sufficient workers who are able, willing, and qualified to do the work needed, and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed workers in the U.S. 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.
Permanent Residence (a Green Card) through Labor Certification will involve 3 steps:
- Labor Certification--To apply for a labor certification for a non-teaching position, the University must make a good faith effort to fill the position in question with a qualified United States worker. We must advertise and recruit for the position in conformity with specifications of the U.S. Department of Labor. We must offer prevailing wages and working conditions and demonstrate that there are no minimally qualified U.S. workers available for the position.
- I-140--Upon receiving a certified labor certification, the OIA will file with USCIS a Form I-140, Immigrant Petition for Alien Worker and department must pay filing fee.
- I-485--Once the I-140 is approved, the foreign national employee is responsible for personally pursuing adjustment of status on Form I-485, Application to Adjust Status to Permanent Residence, in a timely manner, if an immigrant visa is available. Since the I-485 is a personal application, the OIA is unable to assist with the I-485 preparation or process for TTU employees. Employees can complete the application on their own or can retain their own independent attorney to complete the I-485 petition.
THE ADVERTISMENT FOR A NON-TEACHING POSITION NEEDS SPECIAL ATTENTION.
Departments should follow these procedures:
1. Draft an advertisement for the position. 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 U.S. 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.
2. The U.S. Dept. of Labor has specific recruitment steps that must be followed, and which cannot take place more than 180 to 30 days prior to filing of the labor certification:
- Placement of a Job Order with the State Workforce Agency (SWA). This is the Texas Workforce Commission. Job order must remain open for a period of 30 days.
- Posting of the advertisement on 2 different Sundays in newspapers of general circulation in the area of intended employment.
- Departments must undertake three separate additional recruitment steps. The possible recruitment options are: job fairs, employer's web site, job search web site other than the employer's, on-campus recruiting, trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and TV advertisements.
3. After the recruitment period (which cannot be more than 180 to 30 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 OIA 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 and curriculum vita.
- A recruitment report signed by the dean, department chair or responsible faculty/staff 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."
- A copy of the Labor Certification Notice. This notice must be posted in a conspicuous place in the hiring department for ten consecutive business days. OIA will supply this form, properly completed, to the appropriate department for posting.
Once this information in satisfactory form is received at OIA, we will submit the application for labor certification via the web. The U.S. Department of Labor's Certifying Officer will then decide upon the labor certification application. It is possible that the U.S. Dept. of Labor will request an audit of the application, or may require the employer to conduct more supervised recruitment. If the final decision of the Certifying Office is to deny the labor certification the denial notice will state the reasons for the denial.
If the Certifying Office approves our application, OIA will be notified by email and will let the department and the foreign national employee know the results as soon as they are available. Processing times may vary.
Procedures Following Labor Certification
Once the U.S. Department of Labor has approved the application for labor certification, the OIA can petition the US Citizenship and Immigration Services (USCIS) on behalf of the faculty member. The OIA will file a Form I-140 with the approved labor certification, appropriate supporting documentation and a check for $700 made payable to the "Department of Homeland Security." The sponsoring department is required to pay for the immigration fee.
Questions regarding the Labor Certification process should be directed to the Lead
Administrator, International Student and Scholar Services (ISSS) at the Office of
International Affairs at 742-3667.