Labor Certification for Non-Teaching Positions
A labor certification is a finding by the U.S. Department of Labor (DOL) that (1) there are no qualified U.S. workers in the geographic area of employment who are able, willing, and available to do the job in question and (2) the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The DOL’s standard filing procedures for permanent labor certification applications are more extensive than those required by the State of Hawaii or by UH. The recruitment steps must be completed and documented in accordance with DOL labor certification regulations. Therefore, to ensure compliance with DOL regulations, the recruitment for the position may need to be repeated according to the proper procedures.
The minimum labor certification requirements for non-teaching positions include:
- No U.S. workers (U.S. citizens, lawful permanent residents, and asylees/refugees with work permission) who met all MQs and DQs applied and are able, willing, and available to take the position.
- A competitive search was conducted (see “Recruitment Procedures” and “Evaluation & Selection,” below)
- Full-time position
- Permanent position (i.e. tenured, tenure-track, or for a term of indefinite or unlimited duration in which the employee would have the expectation of continued employment; there is no specified employment end date and is not seasonal or intermittent.)
- Bona fide job opportunity – position actually exists and is not based on “self-employment”; the employer would be willing to hire a qualified U.S. worker.
- Position is not vacant or at issue due to a strike or labor dispute involving a work stoppage.
- Employee possessed all minimum and desirable qualifications before he/she was offered the position.
- Required educational degree must have been conferred before the offer date unless “ABD” or “degree by [date]” or other qualifying language is included in the ad.
- If experience is required in the ad, employee must have the requisite # of months/ years of experience at full-time employment. For example, if an ad minimally requires 1 year of teaching experience and the employee’s only previous teaching position lasted 1 year at 20 hours/week, he/she does not meet the minimum qualifications.
- Any experience gained by the employee in a substantially comparable UH position may not count toward an experience requirement - i.e. positions can be considered not "substantially comparable" only if different duties are performed at least 50% of the time.
- Labor certification application must be filed no later than 180 days (6 months) after the recruitment start date (submission date of the job order or the posting date of the first job ad, whichever occurs earliest).
First, the UH department prepares the position description that will appear in the job advertisements. Ads must conform to the following requirements:
- Must be identical in job title, requirements, and duties so that all applicants are offered the same wages, working conditions, and opportunity.
- Ads cannot state a salary that is lower than the prevailing wage or the amount offered to the employee.
- Ads cannot include the word "temporary" in the posting.
- Must not include unduly restrictive requirements that cannot be justified by business necessity. Examples of unduly restrictive requirements include but are not limited to:
- Requiring proficiency in a language other than English (except for language teachers)
- Requiring a college degree where a technical degree/OTJ training was previously required by the employer or industry
- Combining jobs into one that is normally performed by more than one worker
- Requiring knowledge/skills which cannot be obtained in the U.S.
- Tailoring job requirements to ensure selection of a particular person
Second, FSIS sends a request for a prevailing wage determination (PWD) to the U.S. Department of Labor using the department's finalized position description.
Third, the UH department posts the advertisements for the position. The department must place the ad in the following media and keep documentation of the dates and sources in which each ad was placed:
- 30-day job order with the State of Hawaii Department of Labor and Industrial Relations.
- Print ads on 2 different Sundays in a local newspaper OR 1 Sunday ad in a local newspaper + 1 print ad in a professional journal - this alternative is only possible if the job requires experience, an advanced degree, and if a professional journal would normally be used to advertise the position. (documentation: originals or copies of the full pages on which the ad appears)
- Work at UH website according to the usual practice. (documentation: printout of the full ad from the website)
- 2 different sources from the list below:
- Job fairs (documentation: brochures or newspaper ads listing UH as a participant)
- Job search website other than Work at UH or site used for the job order (documentation: printout of the full ad from the website)
- On-campus recruiting (documentation: copies of the campus placement office’s notice showing UH as the employer and date(s) interviews were held)
- Appropriate trade/professional organizations (e.g. newsletters, journals) (documentation: copies of the full pages on which the ad appears)
- Private employment firms (documentation: copy of the contract between UH and the firm AND copies of the ads placed)
- Employee referral program with incentives (documentation: dated copies of UH notices/memos about the program and info about the incentives)
- Campus placement office (documentation: fliers, postings, etc. that were distributed by UH Career Services)
- Local and ethnic newspapers (documentation: copies of the full pages on which the ad appears)
- Radio and TV ads (documentation: copy of the text of the ad and confirmation from the radio/TV station stating the ad’s air date)
NOTE: The following elements must be visible in the documentation of each ad:
- Print sources: Publication name and date
- Web sources: URL, print date, and posting date (adjust print settings in your browser (e.g. Internet Explorer, Mozilla Firefox) in "Page Setup" if necessary)
The UH department reviews the applications received. If any U.S. workers who met all MQs and DQs applied and are able, willing, and available to take the position, UH cannot file a labor certification application for a foreign national even if he/she is found to be the best qualified applicant.
It can be difficult to determine which applicants are U.S. workers. Departments should consult with the UH Office of Human Resources and the UH Equal Employment Opportunity and Affirmative Action Office to determine lawful questions to make this assessment.
UH departments must adhere to these requirements during the evaluation and interview process:
- The foreign national, agents, or attorneys for UH or the foreign national cannot play any role in the interview or applicant evaluation process.
- The interviewer must be the person who normally interviews or considers, on behalf of UH, applicants for positions such as the one offered to the foreign national.
- All applications must be reviewed as soon as possible and all documentation of the applications (resumes, cover letters, reference letters, etc.) should be retained. Departments should also immediately contact applicants who, based on their application, appear to be minimally qualified. Any delays may be seen as evidence of a lack of good faith in recruiting, particularly if the delay results in an applicant’s unavailability for the job.
- Use a standardized method to document any interviews conducted over the phone.
- Document all attempts to contact applicants by phone or email for interviews. If an applicant cannot be reached by phone/email, the department should send a letter by certified mail requesting an interview with the applicant.
- U.S. workers may only be rejected for legitimate, job-related reasons. Document the reasons each U.S. worker does not meet the minimum qualifications for the job AND sort the list of applicants by the reasons for rejection.
EB-2 Professionals with Advanced Degrees