Labor Certification for Teaching Positions

The U.S. Department of Labor’s (DOL’s) permanent labor certification requirements are designed to ensure U.S. employers have done their best to find and are willing to hire qualified U.S. workers. For college and university teachers, UH simply needs to show that the international employee is the best qualified applicant, even if minimally qualified U.S. workers applied for the position.

A UH department intending to sponsor an international employee has the option of conducting 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 teaching positions must be submitted to DOL within 18 months after the selection date, which is the date of the offer letter. However, FSIS must complete several pre-filing steps that can take three to four months, so departments must complete the recruitment or reselection process detailed below and submit the EB-2 or EB-3 request to FSIS within one year after the selection date.

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, and FSIS meet to go over the permanent residence process. This meeting is optional, but recommended.

Takes about 1 hour
2 The department confirms the position and advertisements meet the DOL criteria or, in the case of reselection, revises the position description (if necessary).

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

  • Position is full-time and involves classroom instruction at a college or university.
  • 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 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.

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

Takes about 1 week or less
3 The department confirms the position was advertised in a national professional journal or, if undergoing reselection, posts a print ad in a national professional journal.

Ads must be posted in a national professional journal (e.g. Chronicle of Higher Education or journal in the specific field) either in a print issue or as an electronic ad posted on a qualifying journal’s website for at least 30 calendar days.

Important: If more than one ad is posted, 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 a specific salary amount 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 usually 30 days; may be posted longer
4 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 posted on national journal sites, Work at UH, and other websites:
    • 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 start and end dates, URLs, etc.
Takes about 1 week or less (must be done while the ads are still posted)
5 The department confirms the committee evaluated the applications and conducted interviews according to DOL requirements or, if undergoing reselection, review applications (if any) to determine if the foreign national is still the best qualified.

Selection committees should adhere to the following guidelines when reviewing applications and conducting interviews:

  • 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 that might eliminate non-U.S. workers.
  • U.S. workers may be rejected only for legitimate, job-related reasons. Keep a list of the applicants and the reasons each person does not meet the MQs and/or DQs. 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.
  • Use a standardized method to comprehensively document interviews conducted over the phone, if any.
  • Document all attempts to contact applicants by phone or email for interviews, if any. 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 2 weeks – 1 month
6 The department verifies there were no equally or more qualified U.S. workers in the pool and the employee meets all MQs and DQs.

To proceed with labor certification sponsorship, the international employee must be the best qualified applicant, which means there can be no equally or better qualified U.S. workers who were able, willing, and available to take the position. If there was such a U.S. worker applicant, UH cannot move forward with sponsorship. The employee can remain in the position, but the labor certification process will end here.

If there are no equally or more qualified U.S. applicants, 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 may not 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.

Takes about 1 week
7 The department submits its portion of the EB-2 or EB-3 request to the HR specialist for the college/school/unit. Takes about 1 to 2 weeks
8 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