Immigration, Work Permits, Perm Visa Program, and Labor Certification: Mario Ramos, Immigration Attorney

Permanent Residence with a Job Offer

Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. The prospective employer must first obtain a labor certification and approval of a petition. The labor certification process is one of the most complex of all immigration-related procedures. This pamphlet will make you aware of some of the requirements and procedures in this intricate and time-consuming process.

What Is Labor Certification?

An approved Labor Certification (LC) is a document issued by the U.S. Department of Labor (DOL) certifying that:

An employer needs the foreign worker's skills and abilities.

The employer has tried to recruit U.S. workers for the position. The employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. worker and who is ready, willing, and able to fill the open position.

The employer has offered the position at the normal or prevailing wage.

The employer has found no qualified U.S. workers. Candidates who respond to the recruitment are presumed to qualify; the employer must convince DOL that they do not qualify. If DOL is not convinced, the labor certification will not be issued and the foreign national will not be able to immigrate to the United States.

The Labor Certification Process

Establish a Valid Employee/Employer Relationship

Although the LC process can be done for persons who are outside the United States, most LCs are begun for persons who are already in the United States working for an American employer.

Determine the Minimum Requirements

The key to the LC process is to decide what the true minimum requirements to the position are. The requirements to the position are. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered.

Analyze Responses to Recruitment

Any responses to the must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.

Processing Times

Processing times vary from a few months to a few years, depending upon the location of the position.

What Happens after Approval?

The approved LC is filed with the U.S. Immigration and Naturalization Service (INS) along with other paperwork to determine whether the foreign national qualifies for one of the following categories of sponsorship:

Members of the Professions with advanced Degrees or the Equivalent or Aliens of Exceptional Ability in the Sciences, Arts or Business ("Second Preference").
Professionals (jobs requiring two years or more training or experience); or Unskilled Workers (jobs requiring less than two years' training or experience) ("Third Preference").

It will take many years to immigrate under the Third Preference Unskilled classification and about two to five years for persons classified under the Second and remaining Third Preferences. The waiting time depends upon the worker's country of birth, place of job, and type of LC. Strategies to avoid the Third Preference Unskilled classification whenever possible are imperative.

How Long is the Labor Certification Valid?

Generally, an approved LC is valid indefinitely for a specific employer, position, or job and location. If any of these factors change, the LC may become a useless document.

Under legislation passed in October 2000, however, individuals who have petitioned for adjustment of status and whose cases have been pending for 180 days or more may change jobs or employers without affecting the validity of the petition or underlying LC, as long as the new job is in "the same or a similar occupational classification" to the job in the original petition and LC.

Common Misunderstandings

An approved LC is proof that there is a shortage of U.S. workers. It is only a first step in the permanent residence process (commonly called Green Card).

It does not give authorization for a foreign national to remain in the United States.
It does not "legalize" anyone's stay in the United States.
It does not grant permission to work.
It does not guarantee permanent residence.

Types of Permanent Labor Certification Procedures

There are different ways to file a case, and different ways the DOL categorizes a case. All cases are initially filed with the state job service (State Employment Security Agency, or SESA), which monitors recruitment. SESAs assist DOL, which makes the decision to grant or deny a case.

Reduction in Recruitment (RIR)

RIR has been replaced by PERM.

Limited Review

These are the cases that have no special job requirements or unusual duties, and therefore require only limited review. Applicant availability or wage issues will be flagged by the SESA after recruitment and forwarded to the DOL for minimal review and approval.

All Other Cases

In cases where no recruitment has been conducted, an application is first screened by the SESA, which will require justification and will then forward the application and justification to the DOL for review. The case will go in a processing queue behind all RIR and limited-review cases. If the justification is accepted, the case will be approved.

From AILA: American Immigration Lawyers Association.