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.
|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:
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:
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):
|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:
|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