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Labor Certification - Standard Filing For Professional Positions

General Position and Search Requirements

• Employment must be located in the United States

• Position must be full-time and permanent:

  • Permanent refers to a position that does not have a definite termination point defined either by a date or the completion of a project or assignment, is not seasonal or intermittent, and is not presently intended or contemplated by the employer that the employment will definitely end at some specified date in the future, such as at the completion of grant-funded research.

• Must be a bona fide job opportunity:

  • A real job must be open for which the employer is willing to hire an available, qualified U.S. worker.

• Employer must intend to hire the employee permanently; employee must intend to remain in the job permanently.

• Employer must document that no U.S. worker meeting the minimum qualifications was available and willing at the time of hire.

• Must be filed at least 30 days but no more than 180 days after recruitment steps are taken

• Job order must be placed through the State Workforce Agency

General Procedure

The department MUST work directly with the appropriate ISSS advisor during each step of the labor certification filing to insure that each step meets the regulatory guidelines. Even if you have already conducted a search process for this position, you may be required to repeat the process to ensure compliance with regulations. Please read the following procedure carefully.

Develop the job description:

• Must specify the minimum requirements for the job, including minimum education, training, experience, and other special requirements. To insure that the requirements specified meet the actual minimum requirements, the employer must determine:

  • Did the foreign national fulfill the minimum requirements at the time he or she was first hired into the current or substantially comparable job?

  • Has the employer ever hired anyone with less education, training or experience for a substantially comparable job?

• Must take into account the employer’s standard job description for the job title AND the tasks description in the job’s O*NET entry, so as to avoid unduly restrictive job requirements. The department will work with ISSS on comparing the job description with the job’s O*NET entry.

• MUST review the job description with ISSS before proceeding with the search process. Error at this stage of the process could result in severe delays.
  
  Key Reminders

• The department must base the minimum knowledge, skills, and experience and education or training that would be needed to fill the position if the job were currently empty and not on the qualifications of the foreign national.

• Minimum requirements that exactly “mirror” the foreign national’s qualifications are considered suspect by DOL as being “overly restrictive.”

• The foreign national must have possessed the minimum qualifications required for the job BEFORE he or she was hired into the position.

2. Request a Prevailing Wage Determination from Human Resources. This procedure is very similar to the LCA for an H-1B. Contact HR for the necessary forms. This process will also determine if the position is considered to be professional. Contact ISSS once you have received the completed Prevailing Wage Determination to discuss whether or not the position is considered professional.

3. Advertise and recruit for job offer.

• ISSS will place a 30-day job order with the State Workforce Agency (SWA). The job order must remain open for a period of 30 days to allow qualified applicants time necessary to respond to the job posting.

• Place a print advertisement on two different Sundays in the AJC. If the position is considered professional, and a professional journal would normally be used to advertise the job opportunity, you may place a print ad in the journal most likely to bring a response from U.S. workers in lieu of ONE of the Sunday ads.

• For professional positions, engage in three separate additional recruitment steps out of a list of 10 possible options. See attached list for specifics. Note that you must choose three different options from this list – two job fairs, for example, count as only one option.

• Evaluate all applications/resumes received for the position. The standards for rejecting U.S. workers, who are otherwise willing and available for the job, are not meeting the minimum qualifications as required by the job offer, even if the foreign national is more qualified. See below for the required documentation.

4. ISSS will create the electronic and hard copy posting notices. We will submit the electronic notice to HR and the hard copy notice to you, with instructions on how and when to post the notice. Please follow the instructions carefully, paying attention to the posting dates. If the notices are not posted for the required length of time, we will need to repeat the posting, which will delay the process.

5. Once the posting notice has been removed, return it to ISSS. We are required to wait for 30 days before we can file the labor certification.

Additional Recruitment and Documentation for Professional Positions

The following is the list of additional recruitment steps and necessary documentation required for standard Labor Certification for professional positions. You must choose three options from this list. Please remember that you must choose three different options from this list – two job fairs, for example, count as only one option.

• Job Fairs: Documentation can be in the form of brochures or newspaper advertisements in which a listing of participating employers appears.

• Employer’s website: Must provide a copy of the website and the posting of the job offer on that website as evidence. This can be the HR website where jobs are posted.

• Job search website other than the employer’s: Any job search website appropriate for the job offered may be used for this option as long as we retain a copy of the job search website and job advertisement posted on that website, i.e. Monster.com, CareerBuilder.com, Hotjobs.yahoo.com, or any other job search website appropriate for the job offer. However, the AJC website is not an option. Again the department must provide a copy of the website and the posting of the job offer on that website.

• On-campus recruiting : Departments can go out to various campuses and conduct interviews. Documentation of this option would be copies of the posting of that campus placement office noting the employer and date they conducted interviews for the position.

• Trade or professional organizations: Departments can place an advertisement in appropriate newsletters or professional journals appropriate for the occupation. Documentation would be a copy of the print ad in the publication that would include the name, date, issue and page number of the advertisement. If the page on which the ad appears does not include all this information, then the department must present a hard original copy of the journal or newsletter publication in which the ad appeared.

• Private employment firms: The department may contract with a private employment firm to locate potential candidates for the position opening. Documentation of this option would include copies of the contract between the department and the firm and copies of the advertisements placed by the firm.

• Employee referral program with incentives: Documentation of this recruitment step would include dated copies of employer notices or memos about the program that include details of the incentives involved in the program and verification that this particular job offer was a part of that program.

• Campus placement offices: Departments may advertise in the Emory Career Center. Documentation should include fliers, postings, and other materials about the position that were distributed by the Career Center.

• Local and ethnic newspapers: Departments may advertise in an alternative newspaper if appropriate for the occupation and provide a copy of the page in the paper containing the advertisement. The page must include the name and issue date of the newspaper in which the ad was placed.

• Radio and TV advertisements: Document this by providing the text of the advertisement and confirmation from the radio/television station stating when the advertisement was aired.

Evaluating Responses to Recruitment Efforts

Once you have completed advertising for the position, you must evaluate EVERY application/resume submitted for the position.

• Evaluate all applications/resumes received for the position. The standards for rejecting U.S. workers, who are otherwise willing and available for the job, are not meeting the minimum qualifications as required by the job offer, even if the foreign national is more qualified.

• Compile documentation for each application/resume. This documentation must include:

  • Copies of all resumes of each applicant who applied, including cover letters and any letters of reference and other supporting documents provided.

  • Copies of written correspondence to the applicant as to the specific job-related reason they were not minimally qualified. A U.S. worker can only be rejected for legitimate job-related reasons, such as (but not limited to):

    • Not have the required minimum education, training or experience as outlined in the job advertisement,

    • Factors that may adversely affect the U.S. worker’s ability to do the job, e.g. bad work references, lack of English language proficiency,

    • Race, religion, national origin, gender, personal hygiene, etc, can not be used as legitimate factors to disqualify applicants.

• The interview process must conform to the following regulatory standards:

  • Neither the foreign national nor agents or attorneys for either the employer or the foreign national can play any role in the interview or applicant evaluation process.

  • The interviewer must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the foreign national.

  • Resumes of all applicants responding to the advertisements and recruitment steps must be reviewed as soon as possible after receipt. Contact as soon as possible applicants who on the basis of their application appear to be qualified. Delays may be seen as evidence of a lack of good faith in recruiting, especially if it is later determined that the delay resulted in the applicant’s unavailability for the position.

  • Documentation of all attempts to contact qualified candidates to arrange for an interview should be kept in some sort of standardized fashion.

  • For clearly unqualified candidates, the department must write a letter to the unqualified applicant thanking them for their interest in the job offer and specifying the specific job-related reason they were rejected. This letter must be retained for the labor certification documentation file.

  • If the department is performing phone and/or in-person interviews, then the department must document in some sort of systematic fashion who was interviewed by phone or in-person, when they were interviewed and document the results of that interview. If the person interviewed is rejected, then the specific job-related reason for the rejection must be documented. For all persons interviewed, the department must correspond with each interviewee, stating the date they were interviewed, the job they interviewed for and the job-related reason why they were rejected.

Required Documentation

• Copy of the Equal Opportunity Programs Search Activity Report (signed and approved by the Equal Opportunity Programs Office), if recruitment not conducted in conjunction with HR.

• A summary recruitment report that describes the recruitment steps undertaken and the results achieved, the number of hires and (if applicable) the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The report must be signed by the hiring official and written on departmental letterhead.

• ORIGINALS of two print newspaper advertisements on two different Sundays in newspapers of general circulation in the area of intended employment. An ad in a print professional journal may be used in lieu of one of the Sunday advertisements IF the position is considered to be professional in nature.

• Documentation of three separate, additional recruitment steps (for professional positions only). Please see above for documentation requirements for each of these methods. You may choose from the following:

  • Job fairs

  • Emory University website

  • Job search website (other than Emory’s employment page)

  • On-campus recruiting

  • Advertisement in publications of appropriate trade or professional organizations

  • Private employment firm

  • Employee referral program with incentives

  • Campus placement offices

  • Local and ethnic newspapers

  • Radio and TV advertisements

• Copies of all documentation generated during the search and interview process, to include:

  • Resumes, cover letters, and letters of reference for all applicants

  • Documentation on what was done to contact EACH individual applicant

  • Any written correspondence with the specific, job-related reason that the applicant did not meet the minimum qualifications.

  • Any spreadsheets, charts, etc. used to track this information.

  • Please separate these documents by the specific, job-related reason for rejection.

• An updated resume/CV . Please read requirements carefully, as it may include elements not normally found in a standard resume. It must include:

  • current residential address

  • residential address outside the U.S

  • date of birth; country of birth; and country of citizenship

  • colleges/universities attended with complete address of institution (street address, city, province/state, country and postal code), dates of attendance(month/year), and type and date (year) degree earned, if any;

  • statement of work history to include:

    • title of position held,

    • name of employer, complete mailing address of employer, phone number of employer

    • dates of employment (month/day/year)

    • name of supervisor

    • immigration classification while employed (if in the U.S.), and

    • job details to include duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc.

  • list of all publications, presentations, memberships in societies and associations, and any prizes or awards granted

• Proof of Qualifications. If you sent any of these for the H-1B petition, you do not need to send them again.

  • Copy of degrees, academic record, transcripts, etc.

  • Copy of letters of recommendation.

  • Copy of up to three recent publications related to the specific area of the academic field for which employment has been offered/granted.

  • Copy of prizes or awards granted for scholarly work.

  • Licenses, certifications or other documentation required to prove qualifications for the position, particularly if the appointment involves clinical practice of medicine.

• Original hardcopy and electronic postings of notice of filings. The notices will be created by ISSS and sent to you with specific instructions on how and when to post.

• A copy of the offer letter. If you sent this for the H-1B petition, you do not need to send it again. The labor certification will not be filed earlier than 30 days or later than 180 days after the commencement of recruitment.

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