Employment-based Permanent Residence
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The
Labor Certification process is the traditional path to immigrating to the
United States. That process, described in detail below, requires an
employer to demonstrate that there are no available workers in the United
States who can fill the position. Unfortunately, the Labor
Certification process can often take many years to complete. We try
to bypass the Labor Certification process if at all possible. Many
of the alternative categories are discussed under the categories for
special professions.
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The
labor certification process is a means by which an employer can show that
there are no available United States workers for a position, so that a
foreign worker can be admitted to the United States as a permanent
resident.
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I.
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The
initial application describes the job duties and the minimum
requirements for the job and is filed with the Employment office (SESA
-- State Employment Security Agency) in the state of intended
employment. After many months (and sometimes years) the SESA
reviews the application to ensure that the job duties do not
unreasonably restrict the job and that the salary offered meets the
"prevailing wage" for the job. Assuming the
application is in order, the SESA authorizes the employer to place
an advertisement for the position in a local newspaper for three
days (or perhaps in a professional journal for one edition), and the
job is posted at SESA offices throughout the area for one month and
on the employer's premises for 10 days. The ad contains
specific language about the job and requirements, but does not list
the employer's name. Job applicants are directed to send resumes
directly to the SESA, and SESA then forwards resumes to the
employer. There are usually no direct phone calls from
potential employees.
The employer must then screen the job applicants and give reasons
why each applicant does not meet the qualifications set forth in the
application. Usually this is done simply by reviewing the
resumes. Sometimes, an applicant has to be called to clarify
information. If any person does meet the qualifications (and
is in fact interested in the position), the employer does not have
to hire that person. It just means that the application cannot
be approved.
After the employer submits a report explaining that no qualified
U.S. workers responded to the ad, SESA forwards the case to the United States Department of Labor.
Assuming that no qualified United States workers respond to the
advertisements, the U.S. Department of Labor will issue the
"labor certification." After the labor
certification is issued, the employer must file an application with
the INS showing that it has the resources to pay the individual's
salary (for employers with less than 100 employees it must submit
tax returns). It must also show that the individual meets the
job requirements set forth in the application (university
transcripts and letters confirming past employment).
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II.
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The
Department of Labor has created a shortcut process for persons in
positions that are traditionally hard to fill with U.S. workers.
If the employer can demonstrate that it has an ongoing recruitment
process, shown through several newspaper or professional advertisement during
the preceding 6 months and other advertisements on the Internet, at
job fairs, etc., then the application can be done on the fast-track
Reduction in Recruitment process.
The same
Labor Certification application is filed with SESA, but included is
proof of the recruiting activities for the preceding 6 months.
After several months, SESA forwards the entire application to the
Federal Department of Labor, and the DOL usually makes a decision a
few months later. The Reduction in Recruitment process is
significantly faster than the traditional Labor Certification
process. We encourage our clients to follow this process if at
all possible.
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In
most states, the regular Labor Certification process is taking many years.
The Reduction in Recruitment process is much faster and is the preferred
route if the employer can show the pattern of recruitment in the previous
6 months.
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(I)
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After the
labor certification is granted - either through the regular labor
certification process or the reduction in recruitment process - the
employer must show the Immigration and Naturalization Service (INS)
that it has the resources to hire the person, and that the person
has the specified job qualifications. This is the I-140
application, and usually takes 6 months (if not more) for
adjudication. The employer must often produce tax returns for
2 years to show it has the resources to pay the salary. The
employee must produce university diplomas and transcripts and
letters confirming previous employment.
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(II)
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After the
I-140 is approved, the person has to wait until his or her priority
date is "current" before proceeding to the next step,
adjustment of status. The priority date is the date the first
application was filed with Department. For most persons, the
priority date is not a problem. In the past there were backlogs
for people from India and China, but currently there is no backlog
from any country. Once the priority date
is current, the applicant, his or her spouse, and all children under
21 can file applications for permanent residency.
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