Why Labor Certification Is Denied

Why Labor Certification Is Denied

Certain employment-based immigrant visas (green cards) require the sponsoring American employer to first obtain “labor certification” from the U.S. Department of Labor (DOL). Labor certification is verification by the DOL that the American employer cannot find qualified American workers to take the job being offered to the foreign worker and that the foreign worker will be paid prevailing wages. 

Getting the labor certification is not easy and requires compliance with stringent requirements such that many labor certification applications get denied. At Kriezelman Burton & Associates, we have experienced labor certification attorneys who help clients in the Chicago area more easily obtain labor certification. We are in the Chicago area but handle cases in Indiana, Wisconsin, and Michigan.

Reasons Why Labor Certification Is Denied

The law provides specific steps an American employer must take for the Labor Certification to be approved. Unfortunately, many employers have their labor certification applications denied for various reasons, but the most common reasons are as follows:

• Incomplete Recruitment Efforts. The law requires that an employer seeking to hire a foreign worker under a category where labor certification is required must test the local market to determine if there are qualified and ready-to-work American workers to be hired in the job being offered to the foreign worker. 

This typically requires placing an advertisement in a local newspaper or forum more appropriate for the offered position. The advertising must be done and completed within 180 days before the Labor Certification application is filed and must also be completed 30 days prior to the Labor Certification being filed. 

The law requires the employer to advertise the job using various standard methods such as the State Workforce Agency and two local Sunday newspapers, and if it is a professional job that requires a degree, additional methods are also required to make sure qualified American workers are reached. 

If a qualified American worker who is ready to work responds to the advertisement, then the employer is prohibited from skipping that worker to hire the foreign worker. One of the reasons labor certification is denied is the DOL determines that the employer did not advertise well enough or as otherwise provided under the law.

• Inadequate Job Description and Showing of “Business Necessity.” The law requires the sponsoring employer must accurately describe the duties, educational requirements, experiential requirements, and skill requirements for the sponsored position. 

The employer cannot, therefore, impose higher requirements for the position than is otherwise normal in efforts to discourage individuals other than the sponsored foreign worker from applying for the job. In other words, the employer cannot “tailor” the job duties and requirements so that they match only the foreign national the employer wishes to hire. 

DOL denies the Labor Certification application where it finds this is what the employer has done, namely, made the requirements too high beyond the norm or otherwise tailored the position to only fit the foreign worker.

• Failure to Show That Employer Can and Will Pay Prevailing Wages. The law requires that the employer sponsoring a foreign worker must pay that foreign worker at least the prevailing wage rate for the specific job. The employer must also show that the company can afford to pay the foreign worker the prevailing wage. DOL denies many Labor Certification Applications on grounds the employer has failed to demonstrate their meeting either or both requirements.

If you wish to hire a foreign worker in a position that requires labor certification, contact us to discuss how we can help you go through this complicated process.