Labor Certification Procedures for Researchers and Other Non-Teaching Positions
It is possible for the University to obtain permanent residency for a researcher and other non-teaching positions under the basic labor certification process. Labor certification is essentially a determination and certification by the U.S. Department of Labor that there are not sufficient workers who are able, willing, and qualified to do the work needed, and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed workers in the U.S. To qualify for a labor certification, the regulations require an employer to prove its good faith efforts to recruit US workers without success through specific recruitment sources.
**Note: These procedures may also be used for Teaching Faculty when the 18 month deadline has been missed. However, the employer in this case is allowed to select the best qualified individual.
Permanent Residence (a Green Card) through the labor certification process will involve 3 steps:
- Labor certification filed with the U.S. Department of Labor.
- Upon receiving the approved labor certification, the University will file for an immigrant visa to be made available to the international hire on form I-140.
- The international hire will then file for permanent residence upon approval of the I-140 (step 2). It is possible to file for permanent residence concurrently with step 2; consult with ISSS on the pros and cons of concurrent filing.
In order to apply for a labor certification for a non-teaching position, the University must make a good faith effort to fill the position in question with a qualified United States worker. We must advertise and recruit for the position in conformity with specifications of the U.S. Department of Labor. We must offer prevailing wages and working conditions and demonstrate that there are no minimally qualified U.S. workers available for the position.
THE ADVERTISMENT FOR A NON-TEACHING POSITION NEEDS SPECIAL ATTENTION.
Departments should follow these procedures:
- Draft an advertisement for the position. The advertisement must have the following elements:
- Name of the employer.
- Direct applicants to send resumes to the employer.
- Description of the vacancy specific enough to apprise US workers of the job opportunity for which certification is sought.
- Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.
- The job offer and minimum requirements may not be described with "unduly restrictive" job requirements and we must be prepared to justify any requirements if asked to do so.
- If a preference is stated in the advertisement, the U.S. Department of Labor will treat that preference as a requirement, and we must be prepared to justify it as a requirement; therefore, we suggest that such advertising not state preferences, but be restricted to minimum job requirements.
- The U.S. Dept. of Labor has specific recruitment steps that must be followed, and which cannot take place more than 180 to 30 days prior to filing of the labor certification:
- The placement of a Job Order with the State Workforce Agency (SWA). In most cases, this is the Texas Workforce Commission. The job order must remain open for a period of 30 days. https://wit.twc.state.tx.us/WORKINTEXAS/wtx?pageid=EV_LOGON&lang=en
- The posting of the advertisement on 2 different Sundays in newspapers of general circulation in the area of intended employment. If the job requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an ad in the professional journal. These ads must be print ads, not online or web ads.
- Departments must undertake three separate additional recruitment steps. The possible recruitment options are: job fairs, employer’s web site, job search web site other than the employer’s, on-campus recruiting, trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and TV advertisements.
- After the recruitment period (which cannot be more than 180 to 30 days prior to filing of the labor certification); if no minimally qualified U.S. workers have applied for or are available for the position, the department may prepare for submission to International Student and Scholar Services the following documents to make up the labor certification application:
- Copies of all recruitment efforts undertaken (tear sheets from newspapers, copies of website where the ad appeared in, etc.)
- Copies of all applicants' resumes.
- A copy of the final candidate's highest diploma, curriculum vita, list of publications, and letters of recommendation. Copies of the documents are acceptable.
- A recruitment report signed by the dean, department chair or responsible faculty/staff member (one who has hiring authority) describing all of the recruitment efforts, identifying all of the recruitment sources used, and describing the results of the advertising and recruitment efforts. The statement must specifically state the number of U.S. workers who responded to the recruitment efforts, the number of interviews conducted with U.S. workers, and the "lawful job-related reasons for not hiring each U.S. worker interviewed."
- Letter stating that the position is "permanent".
- A copy of the offer letter from the University to the prospective employee.
- A copy of the Labor Certification Notice. This notice must be posted in a conspicuous place in the hiring department for ten consecutive business days. ISSS will supply this form, properly completed, to the appropriate department for posting. The notice will also be placed in the Office of International Affairs and the Personnel office. If any in-house media was used to advertise the position, the notice must also be placed for 10 consecutive business days in the same in-house media, whether electronic or paper.
When this information in satisfactory form is received at ISSS, we will submit the application for labor certification via the web.
The U.S. Department of Labor's Certifying Officer will then decide upon the labor certification application. It is possible that the U.S. Dept. of Labor will request an audit of the application, or may require the employer to conduct more supervised recruitment.
If the final decision of the Certifying Office is to deny the labor certification the denial notice will state the reasons for the denial. The University may appeal a denial decision through an elaborate administrative/judicial review procedure. Once a negative decision is final, the University may re-file a new application for labor certification for the same position.
If the Certifying Office approves our application, he or she will notify the University through ISSS. ISSS will let the department and the alien know the results as soon as they are available.
Procedures Following Labor Certification
Once the U.S. Department of Labor has approved the application for labor certification, the University can petition the US Citizenship and Immigration Services on behalf of the alien. This is done by filing a Form I-140 with the approved labor certification, appropriate supporting documentation and a check for $580 made payable to the "Department of Homeland Security" . This part of the process is called a second preference petition. The word "second" refers to the organizational scheme of the Immigration and Naturalization Act; it is not a lesser kind of green card. All green cards are the same, all confer the same benefits. Only the paths to those green cards are different.
We reiterate the caution to scholars and departments that the scholar must have been awarded his or her degree (if it is a requirement for the position) before the University can file the I-140. The University often hires individuals who have completed all the requirements for their Ph.D. degree except for submission of their dissertation. The completion of the dissertation is sometimes shuffled to the back of the scholar's priorities during his or her first year of teaching or research. Time passes and the degree isn't awarded as promptly as everyone might have wished. While the department may allow the scholar some leeway in this regard, the USCIS is not so open-minded.
Questions regarding the Labor Certification process should be directed to the International Faculty Counselor, International Student and Scholar Services (ISSS) at the Office of International Affairs at 742-2974.
Basic pre-filing process for the hiring department