Most of the foreign national who would like their employers to sponsor them for green card in the United States should first get the Labor Certification from the Department of Labor(DOL). This is the first step in the green card process. The labor certification is for a job in future, which is currently available to test the labor market. It is open for US workers(US citizen and Greencard holders). The "alien" may only accept it upon receiving his/her permanent residence. The H-1, however, is for an entirely different job. So, technically, it is possible to work for a different employer while the person is on H1 with some other company. But for all practical purposes, it is extremely unlikely to find the employer who would file for the person's greencard when he/she is not working for the company. The labor certification is process is to be done always by the employer and not the alien beneficiary.

This process is lengthy and may take from few months to few years depending upon the jurisdiction of the DOL under which the job for which labor certification is being filed is. U.S. employers decide to petition for an immigrant worker only after an extensive, and unsuccessful, recruitment process in the domestic labor market. In this process a sponsoring employer files an application with the U.S. Department of Labor essentially stating that it is not possible to find a qualified U.S. worker to fill a position. The foreign worker is being sponsored for permanent residency on the basis that he or she has the qualifications to fill the position. For the application to be approved, the employer is required to undergo a process of recruitment to prove to the Department of Labor that there are no U.S. workers available. Department of Labor certifies that the alien worker will not displace (in other words, there are no U.S. workers who are able, willing, qualified, and available to perform the job) nor adversely affect the wages and working conditions of U.S. workers who are similarly employed.

In order to get the labor certificate approved, the wage being offered to the alien must meet likely U.S. Department of Labor (US DOL) prevailing wage standards. As many employers are not comfortable advertising the exact wages, they can post a range of wages. The wage being offered(in case of range, the bottom of the range) should fall no lower than 5% below the prevailing wage for the job title. The wage may not include the commissions or bonuses unless they are guaranteed. Minimum requirements for the job opportunity must be carefully analyzed and they should be consistent with the standards established by the DOL for job duties and requirements. Preventing immigrant labor from depressing the wages for American workers is one of the major reasons for the complexity of this process, and the failure of an employer to offer the prevailing wage is almost certain to seriously jeopardize your application process.

It must be bona fide job opportunity and must not be a sham. Job must be full time, "permanent" and job location must be in United States. The job requirements must be reasonable. The job opportunity should not involve unlawful discrimination. Job should not be available because of a strike or lockout. The terms, conditions, and environment of the job should not be contrary to law. The job opportunity has been and should clearly be open to any qualified U.S. worker. The job title and description to correspond to one of the Dictionary of Occupational Title codes. Mix and match of job duties is not allowed even if it is appropriate or legitimate. An employer-employee relationship must exist. The employer must hire, fire, supervise and provide payment to employees. The job must have existed before the alien was hired, or the employer must document that there was a major change in the business that created the job after the alien was hired. Exceptions to the it are possible only if the employer is able to document a business necessity for a questionable duty and/or hiring requirement. The DOL generally does not regard job offers from relatives or from businesses in which the prospective immigrant owns an interest as being made in good faith.

The employer cannot describe the job in unduly restrictive terms. That is, the employer may not impose requirements that are not a legitimate part of the job. This is particularly true of requirements that the employee speak a language other than English. While this is usually the easiest way to demonstrate that there are no similarly qualified U.S. workers available, if the employer includes such a requirement, the employer must prove that the job being offered could not be successfully performed without it. Proof usually consists of a detailed letter explaining why this is the case, together with other evidence, such as telephone bills to a foreign country or foreign language documents that are regularly used in the job.

The employer needs to demonstrate that the company is financially sound and it can afford to employ hire the employee. So employer may have to show INS the company's finances. The financial ability to pay must exist at the time of filing the labor certification and must continue to exist till the time you actually get your green card.

Labor certificate is valid indefinitely once granted, provided the job for which it was approved is still available. Getting a labor certificate approved does not change the person's non-immigrant status. He/She is still on the same non-immigrant status.

Labor Certification(LC) is entirely different from Labor Condition Application(LCA). LC is for getting green card and LCA is for getting H1B visa. LCA is much more easier and faster to get than LC.

Not all employment based categories require labor certification. None of the sub-categories in EB1(Employment based first preference) required labor certification. In EB2(Employment based second preference), labor certification is required unless it can be proved that the alien's work in the national interest of United States and hence labor certification should be waived (It is called National Interest Waiver(NIW)). All sub-categories in EB3(Employment based third preference) required labor certification.

EB4 (Employment based fourth preference) created for ministers and religious workers, replaces the labor certification requirement with a requirement of demonstrated affiliation with the employer. The value of a minister or religious worker is arguably unquantifiable, and a position with a church or other religious organization, at least in the abstract, is not appropriate for labor certification.

EB5(Employment based fifth preference). It is actually not employment-based but rather an employment-creating one. EB-5 is reserved for would-be immigrants who invest $1 million (or $500,000 in rural or high-unemployment areas) to create ten or more jobs for U.S. workers. So there is nothing certify. So labor certification is required.

Certain low-skill occupations are considered inappropriate for labor certification because the U.S. Department of Labor has determined that there generally are sufficient United States workers who are able, willing, qualified and available for the occupations.

Certain occupations are pre-certified due to a lack of qualified U.S. workers:
physical therapists
professional nurses
aliens with exceptional ability in the sciences or arts

Certain aliens are exempted from the labor certification process, i.e., those immigrating on the basis of a family relationship, diversity immigrants, refugees and those granted asylum, even though many will be undertaking employment in the United States.

In normal labor certification cases, after filing labor certification, the employer has to do recruitment efforts to prove that no qualified US workers are available to do the given job. In RIR, the employers proves to the Department of Labor that they have already made sincere, fair and adequate recruitment effort to hire local US workers within the six months immediately preceding the filing of the labor certification application and they were unsuccessful. Internet advertisements are mostly not accepted and it is best to have print advertisements. If an employer receives resumes in response to its recruitment, they should be submitted along with the RIR application. (If the US workers who responded to the ads were rejected for subjective reasons that are not measurable or object, whether to approve RIR application or not would be decided on a case-by-case basis at the discretion of the certifying officer. ) This evidence is submitted at the time the Forms ETA 750A and ETA 750B are initially submitted to the Department of Labor. If the Department of Labor decides that the prior recruitment efforts are acceptable, the employer does not have to go through that recruitment effort again and hence the case would be put on 'fast track' and hence the labor certification process may be much faster than the normal process.

So every one should try to apply for labor certification in RIR, if possible. The possibility of the rate of approval of RIR cases may probably be reduced in some DOL regions where the time difference between normal processing and RIR processing is too high. That is just the speculation and may or may not be true. At many DOLs, the applicants might have to wait for many years before their normal case is approved.

The recruitment effort should be according to normal industry standards and it should provide evidence of a pattern of recruitment. A three- day ad in a single publication or a single type of advertising does not constitute an acceptable pattern.

The job duties/responsibilities listed on the application must not exceed the normal descriptions of the jobs. The application must list only the minimum requirements as to experience, training, and education. Thus, it should not have any restrictive requirements and it should meet the prevailing wage requirements in local area for that job. RIR application may be denied if there are any special qualifications required in the job description as it may become specifically tailored according to alien's qualifications and it would be unfair advantage to the alien. Substantial variations between the job description on labor certification and the advertisements are not permitted. So the labor certification may end up being too generic. Normally, if RIR application is rejected for whatever reason, labor certification process needs to be started all over again and mere transfer of case to normal processing won't work. But some DOL offices go ahead and process the petition it as a Normal Labor Certification.

Each DOL regional office is undertaking different approach regarding RIR. Some offices permit RIR processing for all occupations, provided the employer can show lack of availability of local workers. Other regions have lists of 'shortage occupations' and will only process applications for occupations on that list. Some regions require at least one print ad in each of the six months preceding the filing of the application. Some offices will allow employers to show less print advertising, depending upon the ads and the job involved. Some offices don't even allow RIR applications for anybody, any occupation.

The DOL tends to favor large established companies over small new ones. Large companies are more likely to have ongoing personnel needs and established recruitment practices, whereas a small company will generally be looking only to fill a specific position. Therefore, the DOL is more likely to give the larger company the benefit of the doubt.

High Shortage Occupations and Regions will have a better chance at successful RIR than others. If the DOL recognizes a general need for personnel in a given occupation or region, they are more likely to approve the RIR. (That is true for computer professionals up to some extent.)

Some applicants might have applied the labor certification as the regular case because there was no RIR available at the time of filing or the employer could not meet the requirements of RIR. If the situation changes and now the employer is in position to apply for RIR, the applicant either continue on regular case or withdraw it and re-file it as an RIR case. Both RIR and non-RIR case simultaneously for same employer, same employee, same job and same job location is not allowed. Note that if you re-file the case as RIR, Section 245(i) 'grandfathering' eligibility can be maintained. (section 245(i) 'grandfathering' allows for the applicants to adjust status in US by paying $1000 fine if they had stayed in US while out of status and their priority date is before January 14, 1998.)

Labor certification is for the job in future. Since the process of getting a greencard takes a long time, it is possible that some persons may need to move from one office location to another which may be in different metropolitan statistical area(may be in same state or in different state), the person would have to do the labor certificate again. It may not be necessary if the paperwork at the time of filing labor certificate itself states that the job opportunity is for any branch of the company and moving from time to time may be necessary as part of the job duties. For labor certifications where the alien will work in various locations throughout the U.S. that cannot be anticipated in advance, the application should be filed with the local employment services office having jurisdiction over the area in which the employer's headquarters or main office is located. Furthermore, the application should still indicate that the alien will be working at various unanticipated locations and include a brief statement explaining why it is not possible to determine the location of the work sites at the time the application is filed.

To avoid any problems, it is best to have a position which does not involve relocations. But it necessary to travel and work in different office locations, the employee should be the proper employee and not independent contractor like free lancer(Use of W-2s and NOT use of 1099s.)

Note that the if the person moves before getting the greencard but moves back to the same location from where the labor certification was filed, then new labor certificate would not be necessary.