Labor Certification Immigrants
For most employment-sponsored immigrants, the permanent residence process comprises three phases: the labor certification, the immigrant visa petition, and the application for permanent residence. The labor certification requirement does not apply to people who qualify as Multinational Manager & Executive Immigrants, Religious Worker Immigrants, Outstanding Researchers and Professors, Extraordinary and Exceptional Ability Immigrants, Immigrant Investors, Family Sponsored Immigrants and Amnesty Immigrants.
A labor certification (Form ETA-9089) is a document issued by the US Department of Labor (DOL) certifying that there is a shortage of qualified, willing and available workers for a full time job that offers prevailing wages and working conditions. The first steps involve finalizing the job description and minimum requirements for the position, and determining the prevailing wage.
As part of the labor certification process, we will need to obtain an official Prevailing Wage Determination. That Prevailing Wage Determination will normally be based on wages listed on the website of the DOL. The labor certification rules do not require payment of the prevailing wage until after permanent residence is approved. However, present payment of prevailing wage may be required as a condition of the employee’s temporary visa (such as H-1B, E-3, etc.)
Any job requirement that is not considered a standard industry requirement for the occupation must be documented as a “business necessity” of the employer and will cause a substantial delay in approval. Also, any requirement that the employee did not have on the first day of work with the sponsoring employer in the current position may not be listed as a job requirement. The DOL will make the final decision on the appropriate level of education, experience, and prevailing wage.
For all types of positions, the employer’s recruitment efforts must include two Sunday advertisements in the largest circulation newspaper in the area of employment, a 30-day job order posted at the State unemployment office, and a 10-day internal posting at the employer’s place of business.
In addition, for positions that require a bachelor degree or higher, the employer must conduct at least three of the following ten recruitment steps:
- Job fair advertising
- On-campus recruiting
- Employer website posting
- Trade or professional organization advertising
- Job search website posting
- Private placement firm listing
- Internal employee referral program
- Campus placement office listing
- Local or ethnic advertising
- Radio or TV advertising
All required recruitment must be completed within not less than 30 days and not more than 180 days from the date the application is filed. We recommend that all recruitment be conducted during one month, then wait one month for US worker response, then file the labor certification application 30 days after the last recruitment step was completed. It is not necessary for the employer to offer a job to any applicant as a result of the labor certification process. However, if the DOL determines that US qualified US workers are available, the labor certification application will be denied.
Assuming that none of the job applicants is suitable, the labor certification application will be filed with DOL. Shortly after filing, the DOL will email the employer asking for confirmation that the case should be processed. In the course of its processing, the DOL will (1) approve the application without any request for information, (2) contact the employer and unsuccessful job applicants for clarification and documentation, or (3) deny the application. If denied, generally the employer may re-file the application after overcoming the deficiency.
Immigrant Visa Petition
Upon receiving an approved labor certification, the employer files the immigrant visa petition (Form I-140) with the Citizenship and Immigration Service (USCIS). The USCIS will determine three issues: (1) whether the employee meets the minimum job requirements, (2) which employment-based immigrant preference category the employee qualifies to immigrate under, and (3) whether the employer has the financial resources to pay the offered salary.
The employment-based immigrant visa preference categories available to labor certification beneficiaries are called “Second Preference” and “Third Preference” and “Other Worker.” A Second Preference immigrant visa petition may be approved if the labor certification states that a Master’s degree (or higher or equivalent) is required, and the beneficiary possesses that degree or equivalent. A Third Preference immigrant visa petition may be approved if the labor certification form states requirements ranging from two years experience or post-high school education up to less than a Master’s degree, and the beneficiary possesses that level of education and/or experience. An Other Worker immigrant visa petition may be approved if the labor certification form states requirements less than two years experience or education.
The employer will need to provide a federal income tax return showing its ability to pay the wage offer in the year the labor certification was filed. The USCIS requires net income (profit) or net current assets equal to at least the prevailing wage. If the employer is already paying the employee the prevailing wage or higher, usually, the USCIS will accept payroll records in lieu of the federal income tax return. The employee will need to provide documentation of his or her qualifications for the job offer, such as letters of reference from former employers, transcripts, diplomas, certificates, etc.
The third and final step toward permanent residence is the application for permanent residence. The employee’s eligible family members apply for permanent residence at this time. If filed inside the US with the USCIS, the permanent residence application is called “adjustment of status” (Form I-485). If the employee is eligible to file an application for adjustment of status and there is no immigrant visa waiting list, the I-485 application may be filed at the same time as the I-140 immigrant visa petition. This means step two and three may be combined for those who apply for permanent residence inside the US.
If the application for permanent residence is filed outside the US at an American consulate (“Consular Processing”), the permanent residence application is an application for an “immigrant visa” (Form DS-230). The I-140 immigrant visa petition must be filed and approved before filing the DS-230. After the employee obtains an immigrant visa at an American consulate and is admitted at a US port of entry, he or she will be granted permanent residence.
For an indeterminate period of time after becoming a permanent resident, the employee should work for the sponsoring employer under the terms of employment stated in the labor certification. However, sponsorship for permanent residence does not affect any preexisting agreement for at-will employment between the employer and employee.
Due to fluctuations in the immigration system, it is difficult to accurately predict how long it will take to obtain permanent residence. The typical processing time for a labor certification varies from 2 weeks to 2 months or more (after recruitment and preparation of 2 months). Processing times for immigrant visa petitions is available from the USCIS website, https://egov.immigration.gov/cris/jsps/index.jsp.
The last step, the permanent residence application, can be filed only if the employee’s “priority date” for an immigrant visa is current. The priority date is set by the date the labor certification was filed. Current priority dates are posted monthly in the Visa Bulletin, available at the Department of State website http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The difference in time between this month’s priority date and an employee’s priority date roughly approximately the amount of time the employee will need to wait before filing the permanent residence application. The permanent residence application is normally processed within one year from filing this step.
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