A labor certification is a document issued by the United States Department Of Labor indicating or “certifying” that an employer has a position that but for the alien, he is unable to fill. That is to say, there are no Americans who are at the same time qualified, available, and interested in the position. Furthermore, the Department of Labor has concluded that the employment of the alien will not “adversely affect” American workers in similar positions.
An approved labor certification contains a stamp that states as follows: Pursuant to the provisions of section 212 (a)(5)(A) of the Immigration & Nationality act as amended I hereby certify that there are not sufficient U.S. workers available and the employment of the above will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. It is signed by the Certifying Officer (or “CO.”)
An approved labor certification is the first step for many aliens seeking to immigrate to the United States through their employment. To be approved, the employer, who is also the petitioner, must demonstrate that he has offered and indeed advertised the position in question to Americans at the “prevailing wage” but was unable to fill the position.
If an alien is working for the employer and qualifies for the position based on "alternate requirements," where does the "magic language" go?
It goes under H-14: "Any suitable combination of education, training and experience is acceptable."
The so called "Magic Language" should be placed in Item "H-14," but must only be used if (a) the alien is working for the employer and (b) the alien qualifies by virtue of alternate requirements instead of the primary requirements. Thus, if the alien has a Bachelor's plus five years progressive experience, and the primary requirements are a Master's Degree, but the employer has indicated that in the alternative, she would accept a Bachelor's degree plus 5 years experience, and the alien is working for the Employer (for example, with an H-1B), the Magic Language is Required: "Any suitable combination of education, training and experience is acceptable."