1. The Certifying Officer's Determination

The DOL Certifying Officer makes a determination either to grant or deny the labor certification application on the basis of whether or not:

• the employer has met the requirements; and

• there is a worker in the United States who is able, willing, qualified, and available for and at the place of the job opportunity.

The Certifying Officer must consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation, as customarily performed by other U.S. workers similarly employed. A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. If the job involves a job opportunity as a college or university teacher, the U.S. worker must be at least as qualified as the alien.

The employment of the alien should not have an adverse effect upon the wages and working conditions of U.S. workers similarly employed. In making this determination, the Certifying Officer considers such things as: 

• labor market information, 

• the special circumstances of the industry, 

• organization and occupation, 

• the prevailing wage in the area of intended employment, 

• and prevailing working conditions, such as hours, in the occupation.

The Certifying Officer will notify the employer in writing of the labor certification determination. If a labor certification is granted, the Certifying Officer will send the certified application and complete a Final Determination Form to the employer, indicating the employer may file all the documents with the appropriate USCIS Service Center.

2. If the Labor Certification Application is Denied

If the labor certification application is denied, the Final Determination Form will:

• state the reasons for the determination;

• advise that failure to request review within 30 days of the date of the determination constitutes a failure to exhaust administrative remedies;

• advise that if a request for review is not made within 30 days of the date of the determination, the denial shall become the final determination;

• advise that if an application for a labor certification is denied and a request for review is not made, a new application may be filed at any time; and

• advise that a new application in the same occupation for the same alien can not be filed, while a request for review is pending with the Board of Alien Labor Certification Appeals.

If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it is appropriate for other reasons, the employer may be required to conduct supervised recruitment in future filings of labor certification applications for up to two years from the date of the Final Determination.

The employer may request reconsideration within 30 days from the date of issuance of the denial. The request for reconsideration may not include evidence not previously submitted. The Certifying Officer may reconsider the determination or treat it as a request for review.

3. The Appeals Review of Denied Labor Certification Application

If a labor certification is denied or revoked, a request for review of the denial or revocation may be made to the Board of Alien Labor Certification Appeals by the employer by making a request for such an administrative review. The request for review:

• will be sent to the Certifying Officer who denied the application within 30 days of the date of the determination; and it

• will clearly identify the particular labor certification determination for which review is sought.

Upon the receipt of a request for review, the Certifying Officer will assemble an indexed appeal file. The appeal file will be in chronological order, and have the index on top followed by the most recent document, and have consecutively numbered pages. The appeal file will contain the request for review, the complete application file, and copies of all the written material, such as pertinent parts and pages of surveys or reports upon which the denial was based.

The Certifying Officer will send the appeal file to the Board of Alien Labor Certification Appeals, Office of Administrative Law Judges, located in Washington, DC.

 

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