DOL takes some measures to Protect U.S. Workers
The DOL has several policies to protect U.S. employees applying for labor certification.
No Modifying the Position:
The DOL will ensure that the U.S. employer does not modify the job requirements to a non-resident’s specific experience. A U.S. employer must justify any unusual job requirement based on a business necessity, not for a personal preference.
No Excessive Requirements:
The DOL will deny the labor certification if the employer has excessive requirements that only a non-resident can or is willing to fulfill unless those requirements are essential to the business. For example, in the U.S., a job requirement that a person must speak a particular foreign language is considered unreasonable. It can only be overcome by proving that knowledge of a foreign language is essential to the performance of the job.
Current Salary Obligation:
A U.S. employer must offer the job to U.S. workers at the current salary level for the job. The current salary level is based on the job duties and requirements and the geographic area of employment. The DOL in the state of intended employment determines the current salary level. Suppose a U.S. employer disagrees with the current salary level set by the DOL. In that case, they can submit evidence, such as an independent survey, to challenge the DOL’s recent salary level determination.
Can’t Hire Non-Residents Only Because They Are More Suitable:
The U.S. employer cannot offer the job (based on a labor certification) to the non-resident simply because the U.S. worker is not equally skilled. A U.S. worker not meeting all of the requirements of the job cannot be rejected if that U.S. worker could receive job training or they can perform the job duties in a normally acceptable manner given their background. The U.S. employer can only offer the job to the non-resident if the U.S. worker does not meet the minimum qualifications for the job. The DOL establishes these minimum qualifications, and they are all listed in a publication entitled “The Dictionary of Occupational Titles (DOT).”
Additional Evidence for Latest Layoff:
Suppose there was a layoff within six months prior to applying for labor certification. In that case, the employer must prove and document consideration and notification of U.S. workers who were laid off and who worked in the same or a related occupation to the one for which certification is being sought.