PRACTICE AREAS

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Employment

The Department of Labor – Employment and Training Administration (DOL) issues labor certifications. This is a procedure by which the DOL determines that there are insufficient US workers who are able, willing, qualified, and available to perform the job. The DOL must also find that the terms of the employment will not have an adverse effect on the wages and working conditions of US workers who are employed in similar positions.

PERM Green Card Flowchart
  • The Employment-based (EB) Preference System Contains Five (5) Preferences
    • The first employment-based preference (EB-1) is available to persons of “extraordinary ability,” “outstanding professors and researchers,” and certain “executives” and “managers” of multinational organizations.
    • The second preference (EB-2) is for people in the “national interest,” and those sponsored for a labor certification job which requires a master’s degree or bachelor’s degree plus five years of work experience (or greater).
    • The third preference (EB-3) is for all other workers who usually must be sponsored for a labor certification issued by the Department of Labor to prove worker shortage.
    • The fourth preference (EB-4) is principally for religious workers.
    • The fifth preference (EB-5) is for investors.
  • Department of Labor Rules

    The DOL has specific rules that govern the labor certification process, including a recruitment process and standards that are different from those companies normally use.

    The DOL’s PERM process allows the application to be filed via the Web. The job’s minimum requirements (i.e., education, training, and experience) are stated on the application, along with any necessary and reasonable special requirements. The job duties and requirements must not be unduly restrictive. They must be consistent with those listed in the Standard Occupational Classification Manual (SOC), Dictionary of Occupational Titles (DOT), and other sources determined by the DOL to reference normal requirements for the job in the US.

    The foreign national must already have the required education, work experience, and special qualifications listed on the application. The DOL rules usually prohibit the use of experience gained with the sponsoring company to qualify for the job. Under the PERM system, on-the-job work experience gained with the sponsoring employer may qualify if it was in a different position with at least 50% dissimilar job duties.

    The DOL rules require that an internal notice of the position opening containing the job title, duties, minimum requirements, and salary be posted at the worksite.

    The employer must also place advertisements in a regional newspaper as well as additional recruitment for professional jobs. Each resume received in response to the ads must be evaluated to ascertain whether the applicant meets the minimum requirements on the labor certification application, not whether the applicant is the best qualified candidate. All responses to the advertisements must be retained in the company’s files. Those applicants appearing to meet the requirements must be interviewed. Detailed notes regarding the interviews and the applicants’ qualifications or lack of qualifications must be taken and kept.

    Note: A labor certification is “job and location specific.” If the foreign national is moved from a job in San Jose, described in the application, to a job in Sacramento after the labor certification is issued but before permanent resident status is granted, the labor certification cannot be used for that foreign national. One hundred eighty (180) days after an adjustment of status to permanent resident application (Form I-485) is filed, the applicant may be able to transfer the labor certification and permanent residence application for work in a similar job at another location or for a different employer.

  • The immigrant visa petition – USCIS Form I-140

    The DOL-approved labor certification is attached to the immigrant visa petition, Form I-140, which is filed with the USCIS service center to classify the foreign national pursuant to the EB-2 or EB-3 preference categories. Supporting documents must accompany the petition to show that the foreign national qualified for the position on the date the labor certification application was filed. This evidence typically includes copies of college degrees and transcripts, and letters verifying the foreign national’s work experience.

    The petition must also be supported by the company’s tax returns. A corporation with more than 100 employees may submit a statement of income by a company officer. This is to show that the company can pay the salary listed on the labor certification. If the company is losing money, other criteria may be used including 1) net current assets; and/or 2) the fact that the employee has been paid the wage listed on the labor certification since the time of filing the application.

    Filing the Form I-140 petition initiates a case for an EB-1, EB-2 national interest, and Schedule A occupation (nurse or physical therapist). Separate petitions are used for EB-4 religious worker or EB-5 investors.

  • ADJUSTMENT OF STATUS OR IMMIGRANT VISA PROCESS

    The next step in the process is to submit an application for “adjustment of status” to lawful permanent resident status. Alternatively, one may apply for an “immigrant visa” at an American consulate abroad.

    The adjustment of status or immigrant visa process cannot begin until the Visa Application Filing Date of the petition becomes current on the State Department’s Visa Bulletin.

    Adjustment applications can only be filed if one is lawfully admitted to the U.S., and certain other criteria are satisfied.

    This part of the process involves proving that the foreign national is “admissible” to the U.S. and has adequate support, is not a criminal, has not committed immigration fraud, has no contagious diseases, and so forth. Employment-based adjustment immigrants are permitted up to six months of unauthorized employment.

    When granted adjustment, or an immigrant visa is issued, and the person arrives in the U.S., permanent residence status is granted and a green card is issued.


Labor Certification Process Step-By-Step
  • Step 1

    Counsel analyzes the job, and with the employer, determines the minimum qualifications for the position, and any special requirements in accordance with DOL criteria and the employment-based category (i.e., EB-2 or 3).

  • Step 2

    Proof of applicant’s education and work history is gathered to ensure qualification for the job. Equivalency evaluation of foreign degrees is required.

  • Step 3

    Counsel evaluates and discusses the prevailing wage with the employer.

  • Step 4

    Salary clearance is obtained from the DOL.

  • Step 5

    Job notice is posted at company.

  • Step 6

    Counsel assists with and places ads and other recruitment, and advises the employer about the DOL rules as the employer tests the labor market to determine whether there are any qualified applicants for the position. If qualified US applicants able, willing, and available to perform the job are found, the labor certification must be stopped.

  • Step 7

    A recruitment report and back-up documents are assembled and prepared for the file.

  • Step 8

    Application forms are finalized. Application is filed with the DOL.

  • Step 9

    Counsel responds to any DOL questions.

  • Step 10

    DOL grants the labor certification, or issues a “Notice of Audit” requesting information on why the application should not be denied, or requires more recruitment, or denies the application.

  • Step 11

    Lawler & Lawler prepares an immigrant visa petition, Form I-140, based on the approved labor certification, and sends it to USCIS with proof that the employer can pay the salary and proof of the employee’s qualifications. The I-140 indicates the EB category.

  • Step 12

    Concurrently with, or after approval of, the I-140, one may proceed to the final stage, provided one’s “priority date” is current on the State Department’s immigrant visa bulletin. Under the State Department’s new visa bulletin system instituted in October 2015, one can begin the final stage when one’s priority date is current on the visa bulletin chart for filing of applications. One’s priority date must be current for an immigrant visa number on the final action visa bulletin chart for approval of the case.

  • Step 13

    Counsel files adjustment of status to permanent resident application, Form I-485, and supporting documents with request for a work permit (EAD) and travel permit (Advance Parole). USCIS may decide it with no interview. After it is approved, a green card is issued.

  • Step 13 (Alternative)

    Foreign national applies for immigrant visa at a US consulate overseas. Some in the US may choose this option, as it may be faster than adjustment of status or may be advantageous for other strategic reasons. After a person is admitted in the US with a permanent resident stamp, a green card is issued.