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 Why Is It Taking So Long for My Labor To be Filed?

“Why is it taking so long for my Labor to be filed?”  

by Sandra Gross, Esq.Calendar Pages


Labor certification is a lengthy process, and at least 3-6 months or longer are needed in order to prepare a labor for submission.   The purpose of labor certification is to demonstrate to the Department of Labor that despite its best efforts, the employer was not able to fill the position with a qualified US worker, and in order to show this, the employer must follow the prescribed recruitment steps.

Before the process even begins, we need to have information about the company sponsoring the petition, the job (and its location) which the foreign worker has or is being offered, and the foreign worker’s education and past paid experience.  The job description is supposed to indicate the minimum requirements for the position and not be tied to the foreign worker’s experience.    This job description is critical because in filing the I-140 or immigrant visa petition after the labor is approved, we must demonstrate that the foreign worker has met all of the minimum requirements for the position, otherwise, the I-140 will be denied.  Another crucial issue at the I-140 stage will be the employer’s ability to pay the wage.

Once we have prepared the job description, we request a wage determination from the Department of Labor.  Currently, this step is taking about 2.5 months.   The wage determination information is included in the labor, since the employer is agreeing to pay this wage once the foreign worker gets his green card. After receiving the wage determination, the employer has to prepare and post a Job Posting Notice, notifying his other employers that he is offering the position, the job duties, location, and wage, and where to file any complaints.  The Job Posting Notice has to be posted for 10 business days either at the company headquarters or using other electronic or printed media which the company typically uses, and the employer must wait another 30 days before being able to file the labor.

We also post a job order with the state department of labor, which makes it available to people seeking work.  The job order must be posted for a minimum of 30 days with the state, and the labor cannot be filed for a further 30 days after the job order was posted (total wait time is 60 days).  The recruitment must be conducted in the location where the foreign worker’s workplace is located, and in the case of roving employees, the recruitment is conducted at the company’s headquarters.

In addition to the job order and the wage determination, the employer must publish two Sunday newspaper ads in a newspaper which is most suitable to find qualified workers, and must also pick 3 alternate methods of recruitment (from an approved list), which have to all be different from each other.  The employer must wait at least 30 days after all of the regular and alternate recruitment steps save one, but none of the recruitment can be older than 180 days.  Once all the recruitment steps are done, the employer must conduct screening and interviews with any applicants who have responded to the ads, and prepare a recruitment report to summarize the results.  If the employer finds any “minimally qualified” workers, the labor cannot be filed.  Even if the foreign worker is better qualified, if a US worker can fill the position by satisfying the minimum requirements, the labor is useless and cannot be filed.

Once all of the recruitment is done and if no US workers were qualified based on this recruitment, we prepared the ETA 9089 for review, and then the labor is filed online.  Since no corrections are possible once the labor is submitted, it is important to review all of the information carefully since even a minor error could result in a denial.  Right now, it takes between 3-6 months for the labor to be reviewed and decided (approved, denied or audited). None of the recruitment is attached to the filing, so about 25% of the time, the Department of Labor audits the case, meaning it asks for documentation of all recruitment steps and sometimes for additional documents such as resumes received or proof of “business necessity” for the requirements included in the recruitment.  The employer must respond within 30 days, and provide copies of the recruitment steps as well as other proof that the recruitment was done correctly.  For that reason, the employer and his or her attorney must keep accurate records of all of the recruitment steps and make sure all of the requirements mentioned are the same throughout.

As you can see, labor certification requires many steps and prescribed waiting times which cannot be rushed.

Disclaimer: The information provided here is not to be construed as legal advice nor pres http://gty.im/56194612 umed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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