Labor Certification for Non-Teaching Positions

The U.S. Department of Labor’s (DOL’s) permanent labor certification requirements are designed to ensure U.S. employers are have done their best to find and are willing to hire qualified U.S. workers. Generally, DOL will approve an application if it an employer’s legitimate recruitment process is fully documented and it can be determined that:

  • There are no qualified U.S. workers in the geographic area of employment who are able, willing, and available to do the job in question and
  • The employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The advertising requirements in the labor certification context are significantly more extensive than those required by UH for hiring purposes. In most cases, a UH department intending to sponsor an international employee will conduct a labor market test (aka “reselection”) to meet DOL requirements. A labor market test cannot be conducted if the position is subject to an ongoing strike or labor-related work stoppage. Labor certification is required for both the EB-2 and EB-3 immigrant categories before UH can file an I-140 petition on behalf of an employee.

Labor certification applications for non-teaching positions must be submitted to DOL within 180 days of the posting date of the oldest advertisement and no less than 30 days before the posting of the most recent advertisement. FSIS must complete several pre-filing steps that can take three to four months, so ideally, departments should try to post all ads around the same time and submit the EB-2 or EB-3 request to FSIS within 3 months after the first day of advertising the position. See below for more details on the process.

Procedures Average timeline
1 UH department holds a permanent residence sponsorship meeting.

The department chair and/or direct supervisor, HR specialist for college/school/unit, international employee who will be sponsored (if selected), and FSIS meet to go over the permanent residence process. This meeting is optional, but highly recommended.

Takes about 1 hour
2 Department drafts and finalizes the position description (PD), which will be posted in all advertisements.

The position and ad content must conform to all of the following specifications:

  • Position is full-time.
  • Position is “permanent” (i.e. tenure-track, permanent, or intended for an indefinite or unlimited duration in which the employee may expect to continue employment and there is no specified employment end date, the contract is at least annually renewable, and employment is not seasonal or intermittent).
  • PD does not include unduly restrictive requirements that cannot be justified by business necessity. Examples of questionable requirements include:
    • Proficiency in a language other than English (N/A for language teachers).
    • A college degree if a technical degree/OJT is the industry norm.
    • Combining jobs into one that is normally performed by more than one worker.
    • Knowledge/skills that cannot be obtained in the U.S.
    • The appearance of tailoring MQs and DQs to ensure selection of a particular person.
  • PD includes only MQs and DQs that are necessary to perform the job. For labor certification purposes as opposed to hiring purposes, DQs are MQs.
  • The educational degree required is clear. If the degree requirement simply states, “PhD in [field]” without any qualifying language, then it is assumed that means conferral of the degree by the selection date. Including qualifying language such as “ABD candidates are accepted” or “must graduate by [date]” will help to clarify what is actually required.
  • Any quantified experience requirements are clear. If a specific number of months or years of experience is mentioned in the ad, the quantity should be assumed at full-time. For instance, if an MQ is one year of research experience, a person who has one year of experience at 20 hours per week does not meet the MQ.

A best practice is to recruit only one rank at a time — that is, avoid running one ad for the Assistant, Associate, and Full levels. If this cannot be avoided, then the department must set up a very clear way of distinguishing who’s applying for which rank(s) by ensuring each applicant explicitly states the rank(s) for which they are applying.

FSIS can review a draft of the PD to identify known potential issues before the ads are posted.

Takes about 1 to 2 weeks or less
3 The department posts the finalized advertisements across all required media.

After the department finalizes the PD, it should post the ad in all of the following required media:

  • 30-day job order with the State of Hawaii Department of Labor and Industrial Relations (HireNet);
  • Full print ads (i.e. not pointer ads) in two different Sunday editions of a newspaper circulated in the same geographic area as the job’s worksite:
    • Oahu: Honolulu Star Advertiser
    • Hawaii: Hawaii Tribune Herald
    • Kauai: The Garden Island
    • Maui: The Maui News
    • Note: If the job requires experience and an advanced degree, a print ad in a national professional journal may be substituted for one of the Sunday ads.
  • Web ad on www.jobvertise.com for 5 business days;
  • Ad posted for 5 business days on the website of the career placement office of a local university with similar degree programs; and
  • Print ad in any local newspaper that normally contains job listings (e.g. Midweek, weekday Star Advertiser, free newspaper, etc.).

Important: All ads must be identical to each other in job title, MQs, DQs, and duties so that all applicants are offered the same opportunity. Do not include specific salary amounts in any of the ads, though it is fine to provide links to salary schedules and to collective bargaining agreement minimum thresholds.

Advertising period is 30 days or longer
4 Within the first week of posting, the department compiles hard copy documentation of all ads.

Ad documentation must conform to these standards (see samples):

  • Print ads placed in newspapers, journals, and newsletters:
    • Keep copies of the full pages of each publication on which the ads appear. Copies may be reduced to 8.5×11-inch sheet(s).
    • The publication’s name, issue/edition date, and page number must be documented. If these items are not printed on the same page as the ad, also keep the full cover page of the publication.
  • Web ads:
    • Keep printouts of the full ads as they appear in the public domain.
    • Printouts must include the site URLs, print dates, and posting dates. It may be necessary to adjust print settings under “Page Setup” in the browser (e.g. Internet Explorer, Mozilla Firefox) to ensure this information is printed on the printouts.
    • Copies of invoices showing posting dates, URLs, etc. may also be kept as additional documentation.
  • Ads placed through campus placement offices:
    • Keep copies of the ads kept on file with the campus placement office.
    • If ads are posted to an online job board, keep printouts of the full ads as they appear in the public domain. Printouts must include site URLs, print dates, and posting dates. Adjust print settings if necessary.
Occurs within the first week the ads are posted
5 Within the first week of posting, the department emails FSIS the links for all web ads and attaches PDF copies of the print ads. FSIS submits a prevailing wage request DOL.

FSIS must submit the prevailing wage request to the DOL as soon as the ads are posted (see #6 below). To submit the wage request, we will need the information contained in the ads.

Occurs within the first week the ads are posted
6 DOL reviews the prevailing wage request and issues the prevailing wage determination.

Before issuing the determination, DOL may request further information from FSIS and set a 7-day deadline for a response. FSIS will inquire with the department; upon receiving the department’s reply, FSIS will submit the additional information to DOL within the 7-day deadline.

DOL takes 2 to 3 months to issue the PWD
7 After the ad posting period ends, the committee evaluates and the applications and conducts interviews.

When the committee is reviewing applications, they should adhere to the following guidelines:

  • Unless it is stated otherwise on an application, assume all applicants are U.S. workers. U.S. workers may be U.S. citizens, U.S. permanent residents, or certain immigrants with work authorization. If reselection, there are certain questions departments may ask applicants that might eliminate some non-U.S. worker applicants.
  • U.S. workers may be rejected only for legitimate, job-related reasons that were set forth as MQs or DQs in the ads. Keep a list of the reasons each U.S. worker applicant does not meet the MQs and/or DQs and sort the list of applicants by the reasons for rejection.
  • Review all applications as soon as possible and keep all of the applications (resumes, cover letters, reference letters, etc.).
  • Immediately contact any applicants who who appear to meet the MQs and DQs. The DOL may conclude that long delays are evidence of a lack of good faith in recruiting, particularly if a delay results in a qualified applicant’s unavailability for the job.
  • If the ad was posted for multiple ranks (e.g. Assistant, Associate, and Full), do not assume that someone who is currently a Full Specialist elsewhere would not accept an Assistant Specialist position unless explicitly stated. If an applicant does not specify a preferred rank, then presume they would accept an offer at any rank, even a lower one.
  • The international employee, agents, or attorneys for UH or for the employee cannot play any role in the interview or applicant evaluation process.
  • The interviewers must be individuals who normally conduct interviews or consider applicants for similar types of positions in the department.
  • Use a standardized method to comprehensively document any interviews conducted over the phone.
  • Document all attempts to contact applicants by phone or email for interviews. If an applicant cannot be reached by phone/email, the department should send a letter by certified mail requesting an interview with the applicant.
Takes about 1 month after the last day the ads are posted
8 If the international employee is selected, the department verifies that there are no U.S. workers who meet all MQs and DQs and that the employee meets all MQs and DQs.

To proceed with labor certification sponsorship, there can be no U.S. workers who met all MQs and DQs and are able, willing, and available to take the position. If there is even one other U.S. worker applicant who met all qualifications, UH cannot move forward with sponsorship. The employee can still accept the position, but the labor certification process will end here.

If there are no other applicants who met the MQs and DQs, the department should ensure the employee meets all MQs and DQs; DQs are MQs in the labor certification context. Note that any experience the employee gained in a substantially comparable UH position cannot count toward meeting an MQ or DQ in the labor certification context (though they can still be selected for the job). Prior UH jobs can be used to meet an MQ or DQ for labor certification purposes only if different duties were performed at least 50% of the time in those positions.

After confirming the above two requirements are met, the department can proceed with sponsorship.

Occurs about 1 to 2 weeks after evaluation and interviews
9 The department submits its portion of the EB-2 or EB-3 request to the HR specialist for the college/school/unit.
Occurs about 1 to 2 weeks after selection
10 The committee or department mails out rejection letters to all rejected candidates via certified mail in a timely manner.

The department should keep copies of each letter and proof of delivery of all letters with the rest of the recruitment documentation. DOL may request these items later on.

Should occur 1 to 2 weeks after selection