A labor certification is a document issued by the United States Department Of Labor indicating or “certifying” that an employer has a position that but for the alien, he is unable to fill. That is to say, there are no Americans who are at the same time qualified, available, and interested in the position. Furthermore, the Department of Labor has concluded that the employment of the alien will not “adversely affect” American workers in similar positions.

An approved labor certification contains a stamp that states as follows: Pursuant to the provisions of section 212 (a)(5)(A) of the Immigration & Nationality act as amended I hereby certify that there are not sufficient U.S. workers available and the employment of the above will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. It is signed by the Certifying Officer (or “CO.”)

An approved labor certification is the first step for many aliens seeking to immigrate to the United States through their employment. To be approved, the employer, who is also the petitioner, must demonstrate that he has offered and indeed advertised the position in question to Americans at the “prevailing wage” but was unable to fill the position.

"MAGIC LANGUAGE"

If an alien is working for the employer and qualifies for the position based on "alternate requirements," where does the "magic language" go?

It goes under H-14: "Any suitable combination of education, training and experience is acceptable."

The so called "Magic Language" should be placed in Item "H-14," but must only be used if (a) the alien is working for the employer and (b) the alien qualifies by virtue of alternate requirements instead of the primary requirements. Thus, if the alien has a Bachelor's plus five years progressive experience, and the primary requirements are a Master's Degree, but the employer has indicated that in the alternative, she would accept a Bachelor's degree plus 5 years experience, and the alien is working for the Employer (for example, with an H-1B), the Magic Language is Required:  "Any suitable combination of education, training and experience is acceptable."

LABOR CERTIFICATION CASE LAW

BALCA vacated the denial of the Certifying Officer's denial of labor certification based on missing Kellogg language and ordered the Certifying Officer to grant certification. Federal Insurance Co. 2008-PER-0037(2/20/09).

Employer failed to establish bona fide job opportunity where it submitted documentation that it was able to pay the proffered wage, but did not show whether it had any employees. BALCA affirmed CO's denial of the labor certification application. Matter of Factor's Row, LLC, 2007-INA-00034 (1/16/08).

BALCA upholds the denial of an RIR case, where questions were raised concerning bona fide offer of employment, finding that "virtual office" for a job without a fixed worksite was more likely a fictionalized location for a job offering. It finds the application does not warrant a remand for supervised recruitment. Matter of PR Consultants Inc., 2007-INA-00066 (1/16/08).


BALCA concludes that regardless of O*NET job classification at issue, position is properly classified as Level II rather than Level I in pre-PERM labor certification application. It upholds CO’s denial, as the Employer failed to meet the prevailing wage. Matter of Plaza Express Car and Limo Service, 2007-INA-00008 (12/10/07).