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This
applies to most occupations.
It
is necessary for an employer to prove that there
are not sufficient U.S. workers who are able,
willing, qualified and available at the time and
at the place where the alien worker is to be employed.
Also,
the employment of such alien will not adversely
affect the wages and working conditions of workers
in the United States similarly employed, e.g.,
an employer cannot pay an alien less than it would
pay a U.S. citizen for the same job, nor can an
employer require the alien to work longer hours
than a U.S. worker would have to work.
The
labor certification process is technical and specific.
An
application is filed with the Labor authorities(not
the Immigration and Naturalization Service), describing
the job being offered and the qualifications of
the alien. The offer of employment must
contain a complete description of the job to be
performed and the minimum education and experience
required to satisfactorily perform the job.
These minimum requirements are often less than
those possessed by the alien. So if the
alien has 20 years experience on the job but the
job could be performed by someone with 3 years
experience, the employer can only require someone
in the U.S. workforce to have 3 years experience.
The
requirements may not be unduly restrictive
e.g. a foreign language, more experience or education
than is necessary to perform the job, combining
two jobs into one that is normally performed by
more than one worker, or knowledge or skills that
cannot be obtained in the United States.
A
stipulation for a requirement, such as one of
the above, may be essential to an employer's business
operation and is acceptable as long as the employer
adequately explains and documents the business
necessity for such requirement.
The
employer should post a notice at the place of
employment setting out the job offer. This
is aimed at qualified employees within the organization,
as well as at non-employees who may learn of the
job from employees.
In
addition, the employer must attempt to recruit
U.S. workers through sources which are likely
to produce workers and are customary to the occupation
e.g. advertise in newspapers or magazines, unions,
etc.
U.S. workers may not be
rejected for a job opportunity offered to an alien
except for lawful job-related reasons e.g.
an applicant does not have the education, training
or experience, bad references or lack of proficiency
in English. Personal situations such as someone's
marital status, religious affiliation or factors
which can only be determined from actual job performance
like initiative or interest in work are not job-related
reasons for rejecting the U.S. worker.
If
the Labor Certification is approved by the Department
of Labor, a petition is then filed with the Immigration
and Naturalization Service to have the person
categorized in one of the preferences.
It
is not necessary to attempt to recruit a U.S.
worker prior to filing an application for Labor
Certification. However, previous unsuccessful
recruitment efforts could enable an employer to
request a Reduction of Recruitment which is a
"fast track" system for obtaining a
Labor Certification.
The
Labor Certification application is extraordinarily
slow and whenever possible, the Reduction of Recruitment
process should be used.
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