Would you like to Immigrate to the United States Through Employment?

Introduction

There are relatively few ways that a person can immigrate to and remain permanently in the United States. If a person does not have a close permanent resident or United States citizen relative, does not have refugee or political asylum status, or does not have $1,000,000 to invest, basically only one alternative is left - immigration through employment. This can be a time-consuming, difficult, and expensive process. But, if you qualify, and if you are successful, you will attain the goal of living and working in the United States. There are six categories of people who can immigrate to the United States based on employment:

  • Persons of extraordinary ability.
  • Outstanding professors and researchers.
  • Certain multinational executives and managers.
  • Religious workers.
  • Members of the professions holding advanced degrees (Master's or Ph.D.) or persons of exceptional ability in the sciences, arts, or business.
  • Professionals, skilled workers, and other workers.

Categories 5 and 6 require an employer to demonstrate that there is a shortage of U.S. workers by going through a process known as labor certification. Since these are the most often used employment categories, this article will focus on the labor certification process. If after reading this article, you feel you are qualified to immigrate through employment, you should contact an attorney who specializes in Immigration Law, or the closest Immigration Service office, U.S. Embassy or U.S. Consulate.

What is a Labor Certification?

A labor certification is a notice from the Department of Labor that an employer has proven two things:

1. There are not sufficient U.S. workers available for a particular position; and

2. The person who is trying to immigrate based on employment will be paid the prevailing wage.

As a practical matter, not all persons or all potential jobs in the United States qualify for a labor certification. Before attempting a labor certification, you must have the following:

1. An employer. There must be a United States employer, willing to offer full-time employment. A person in business for themselves cannot file a labor certification on their own behalf and, generally, nor can a company in which they are a part owner file for them. Finally, a nonimmigrant alien who is a business owner in the United States cannot file a permanent labor certification for another person.

2. A set of skills that are not in abundance in the United States. The primary purpose of the labor certification process is to prove there is a shortage of United States workers. Of course, to do so, there must be skills involved that separate you from other United States workers. For this reason, persons with no or little education, experience or skills which are out of the ordinary, will generally find it very difficult, if not impossible, to obtain a labor certification.

3. A position which requires those skills acquired through education and experience. Merely having a set of skills will not ensure a labor certification. There must be a job that requires the use of those skills. For example, an accountant's skills are not needed in an engineering position. In the same way, requiring someone to have a Bachelor's degree in Food Science is not a normal requirement to be a Foreign Specialty Cook.

4. An employer willing to pay the prevailing wage. Congress does not want employers to hire and pay alien workers to the detriment of United States workers. Therefore, the employer must be willing to pay the salary that is normally paid to other United States workers performing the same job duties.

The Labor Certification Procedure

If you meet the four requirements listed above, you are ready to proceed with the labor certification process to see if there is a shortage of United States workers. That process involves the following steps:

1. Determination of the actual minimum requirements

This is probably the most difficult part of most labor certifications. If the list of requirements is too short, the actual requirements may not have been fully stated and many United States workers may appear to be qualified. If there are too many requirements, the Department of Labor may deny the labor certification, asserting that having so many requirements is unduly restrictive. Finding the proper balance is extremely important.

The employer must ultimately make two statements, both of which must be true:

a. The stated requirements are the employer's actual requirements for the position, and
b. No person has been hired by the employer for the position who does not meet all of these requirements.

Since it is important that you meet all of the listed requirements, it is important to take into consideration your own qualifications when the employer determines the minimum requirements for the position.

2. Recruitment

In 2005, the Department of Labor drastically changed the way they process labor certification cases, by implementing the PERM system. The main difference from the previous labor certification process is how documentation is handled. Under the previous system, documentation such as copies of newspaper ads and other recruitment efforts, justification of the requirements, prevailing wage determinations, etc., was submitted when the labor certification application was filed. Under PERM, all the same documentation must be prepared or assembled, but will be kept by the employer and only submitted if requested by the Department of Labor. The employer must keep this documentation for 5 years.

Under the previous regulations, there were two classes of labor certifications: Reduction in Recruitment (RIR) (also known as "fast-track", since these types of cases were given priority handling), and traditional or Non-Reduction in Recruitment (Non-RIR) cases. These two classes have been done away with. While there are still two ways to prepare for the filing of labor certification applications, the two processes now are based on type of occupation.

A. Recruitment for Non-professionals

The Department of Labor has designated all occupations as either non-professional or professional. The list of professional positions can be found at
http://atlas.doleta.gov/foreign/pdf/PERM_Final_Rule_12-27-04_FR.pdf If the position is not classified as professional, there are only two recruitment requirements: 1.) Two Sunday newspaper ads; and 2.) A 30-day job posting with the State Workforce Agency (SWA). The California SWA is called the Employment Development Department.

In addition, notice must be given to the employees of the company that a labor certification application is going to be filed by either notifying the bargaining representative or by posting a notice for 10 business days at the job site.

B. Recruitment for Professionals

If the occupation is a professional occupation, the employer must do everything that is required for non-professional recruitment. However, in addition, the employer must do at least 3 out of 10 additional suggested steps. Those suggested, recruitment steps are listed in the regulations as: 1.) Job fairs, 2.) Employer's website, 3.) Job search website other than the employer's, 4.) On-campus recruiting, 5.) Trade or professional organizations, 6.) Private employment firms, 7.) Employee referral program with incentives, 8.) Campus placement offices, 9.) Local and ethnic newspapers, and 10.) Radio/television advertisements. If the employer fails to do these additional steps, the labor certification application will be denied.

3. Prevailing Wage

As part of the labor certification effort, the employer must offer the prevailing wage. The prevailing wage is essentially the average salary U.S. workers are paid who perform the same duties as the job for which certification is sought. The regulations require that the employer not only pay the prevailing wage, but also recruit potential U.S. workers at the prevailing wage. The prevailing wage determination comes from the State Workforce Agency (SWA) and the wage must be included in the notice to the company's employees.

4. Review of United States applicants

The fact that United States workers may respond to the recruitment does not mean that the labor certification process will be unsuccessful. The employer reviews the applicants to determine whether they, in fact, meet all of the requirements. If they do not, the employer explains to the Department of Labor why each person is not qualified for the position. Of course, if a person responds who meets all of the requirements, and actually wants the job, the employer has done exactly what the Department of Labor wants - that is, the employer has established that there is not a shortage of United States workers. However, in the event that there is a qualified worker, the employer is not required to fire you and hire the qualified United States worker. The regulations only state, in such a situation, that no labor certification will be granted.

Assuming that no one appears qualified, the employer explains in a letter or memo why they are not qualified. The employer is responsible for accumulating and maintaining all of the documentation which has been generated to this point. Once all of the initial steps have been taken and the documentation has been assembled, the employer may file the labor certification application (Form 9089) either electronically or by mail. No supporting documentation is included in or attached to the application.

Later, if the Department of Labor desires to do so, it can request all of the documentation and information gathered by the employer including each applicant's resume and the reasons why each applicant failed to qualify. Such information and documentation may be requested to assist the Department of Labor in deciding whether the labor certification should be granted.

Processing the Application by the Department of Labor

Upon receiving the labor certification application, the Department of Labor will electronically and manually review the form. Based upon this review, the Department of Labor is authorized to do one of three things:

  • Approve the application- If everything looks well to the Department of Labor, they can approve the application with no need for any further correspondence requesting information or documentation.
  • Deny the application-If it is obvious from the face of the application that there is not a shortage of U.S. workers, the application can be denied.
  • Request an audit- The purpose of an "audit" is to request additional documentation or information supporting the statements on the application form. Most, if not all of this documentation and information should already be in the employer's files. It is anticipated by the Department of Labor that this documentation and information will be easily accessible and immediately available. If, based on the request for additional information and documentation, the Department of Labor decides that supervised recruitment is necessary, such a request will be made as part of the audit process. Under supervised recruitment, the employer will be required to run another newspaper ad as well as other recommended recruitment processes. The U.S. respondents will be required to send their resumes directly to the Department of Labor which will then forward these resumes to the employer for consideration. If, after the supervised recruitment, it is determined that there are no sufficient U.S. workers available, the labor certification will be approved. However, if, after that effort, it is determined that there are sufficient U.S. workers, the labor certification will be denied.

Any number of factors can trigger an audit including the Department of Labor: disagreeing with the minimum requirements, determining that the employer did not conduct a bone fide test of the labor market, deciding that the employer's reasons for rejection were not valid, determining that the employer's contact with any U.S. applicants was too slow, causing them to lose interest in the position, etc.

What Does An Approved Labor Certification Mean?

Assuming that the Department of Labor approves the labor certification, whether with or without an audit, an approval notice will be issued. The approval does nothing by itself. It is merely the first step towards permanent residence. An approved labor certification merely shows that the Department of Labor has determined that there is a shortage of United States workers for the particular position.

A labor certification is generally valid indefinitely as long as a visa petition (Form I-140) is filed within 180 days of approval and you:

1.Continue working for the same employer;
2.Continue working at the same location; and
3.Continue working in the same position.

What a Labor Certification Does Not Do

An approved labor certification does not provide work authorization. If you are legally in the United States and have work authorization, for example, such as an H-1 temporary worker, you may need to maintain that work authorization until the rest of the permanent residence process is completed. Nor does an approved labor certification legalize or extend a person's stay in the United States. Again, an approved labor certification is merely the first, very important, step towards permanent residence. It is unrelated to your legal nonimmigrant status or to the continuation of your legal stay in the United States.

Further Steps Toward Permanent Residence

After the approval of the labor certification, there are other steps which need to be taken in order to obtain permanent residence. Failure to properly complete these steps will be a failure to make proper use of the approved labor certification.

Visa Petition

Once the labor certification has been approved, it is then necessary to submit the approval to the Immigration Service. This is done along with the visa petition form (I-140). The employer must file the Form I-140 within 180 days of approval of the labor certification, otherwise it becomes void. At the visa petition stage, two primary factors must be proven to the Immigration Service:

a. That you meet all of the employer's requirements for the position which were listed in the labor certification, and

b. That the employer can pay the salary being offered.

Documentation of both of these factors must be submitted to the Immigration Service along with the approved labor certification, when the visa petition form is filed.

Permanent Residence

Once a visa petition is approved, you will then apply for permanent residence when your priority date becomes "current." If you are eligible to apply in the United States, you can apply for adjustment of status. Under current law, most people are eligible to apply for adjustment of status. If you are not eligible to apply for adjustment of status, that does not necessarily mean that you cannot be a permanent resident. It merely means that you will have to process your final paperwork outside the United States and have your final interview abroad, usually at the U.S. Embassy in the country of your citizenship. This is not an option, however, for most persons who have been out of status for more than 180 days.

In many cases, a visa petition and an application for adjustment of status can be filed at the same time, assuming that the priority date is "current."

This answers most of the frequently asked questions which we receive in our office about labor certification. If after reading this you have questions about working in the United States or any other immigration matters, you may call Litwin & Smith and arrange an appointment at either our San Francisco, South San Francisco, or Santa Clara office. There is an initial consultation fee. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.