Employment-Based Visas - Labor Certification - Adverse Effect On U.S. Labor

By: Warren & Associates

When an employer applies for labor certification for an alien, the United States Department of Labor (DOL) evaluates, among other things, whether alien labor will adversely affect the U.S. labor market. Specifically, the DOL certifying officer considers whether wages and working conditions will be affected for similarly employed native U.S. workers. Generally speaking, if the alien's wage or working conditions would be less favorable than those typically offered to U.S. workers, the application for labor certification is denied.

In making this determination, the officer considers several factors, using his or her knowledge of the U.S. labor market, the relevant industry, and the prevailing wages and benefits offered in the specific occupation. Most often, wage determinations are contested. However, the prohibition against an adverse affect on U.S. labor extends to working conditions, as well.

Wages

The DOL establishes a prevailing wage rate that an employer petitioning for alien labor certification must offer U.S. workers who apply for the job. First, if a statutory wage exists, that wage rate is used. This typically arises for occupations covered by the Davis Bacon Act or the Service Contract Act. If there is no such statutory rate, the certifying officer considers whether a prevailing wage rate has been established through a collective bargaining agreement. If neither of these options applies, the officer computes a wage rate using the Occupational Employment Statistics (OES) program, which includes wage data by industry and geographical location.

The data pulled from the OES system is made as specific as possible. If a statistically sufficient sample of data can be pulled in the local area, such as a metropolitan statistical area like Chicago, Illinois, that data is used. If not, the OES system uses area data. If that is also insufficient, the system defaults to state data, then to nationwide data.

The OES surveys are conducted in three-year cycles for two levels of wage rates. The entry-level wage is established for each occupation, as well as an experienced worker rate. An employer must have offered the relevant wage rate to U.S. workers who applied for the open position.

If an employer disagrees with an OES wage rate determination, it may challenge the determination using its own data. Data used to challenge OES determinations must meet certain criteria relating to its age, geographical and industry areas, and methods. Specifically, the employer's data must be less than two years old, it must cover a geographical area no broader than that used by the OES system, it must be cross-industry, it must be statistically sound, and it must use a mean rather than a median wage rate.

Working Conditions

Most employer challenges to DOL findings regarding the adverse effect of alien labor on the U.S. labor market are to wage data. However, employers occasionally challenge findings relating to working conditions, such as work hours and fringe benefits. The main area of contention relates to labor that lives with the employer. When living in is a condition to a job, the employee must be provided with free room and board that is not shared with anyone else, and the employee must be allowed to leave the work site on off hours.

Only if the DOL finds that alien labor will not affect the wages or working conditions of U.S. workers will an application for labor certification be approved.