Labor Certification... Step-by-Step

THE BASICS

For Permanent Residence (Green Card)

• Employer must prove there is a shortage of U.S. workers to fill the position
• Labor Certification must be obtained from the Department of Labor to apply for permanent resident status with USCIS via an Employment Based (EB) preference
• People often begin work with nonimmigrant H-1B, E, or L visas, but this is not required

The Department of Labor, Employment and Training Administration (DOL) issues labor certifications. This is a procedure by which the DOL determines there are not enough U.S. workers who are able, willing, qualified and available for 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 U.S. workers who are employed in similar positions.

DEPARTMENT OF LABOR RULES – PERM

DOL has specific rules that govern the labor certification process, including a labor test and standards which may be different from those companies normally use to recruit. In the spring of 2005, the DOL started a new system for labor certifications called PERM.

Form ETA 9089 is filed electronically with the Department of Labor (DOL). The job's minimum requirements (i.e., education, training, and experience) are stated on the form. The job duties and requirements must not be unduly restrictive. They must be consistent with those listed in the Standard Occupational Classification Manual (SOC), O*NET and sometimes the Dictionary of Occupational Titles (DOT), and other sources determined by the DOL to reference normal requirements for the job in the U.S.

The foreign national must already have the required education, work experience, and special requirements listed on the application when the application is filed. The DOL rules usually prohibit the foreign national from using any experience gained with the sponsoring company to qualify for the job. On-the-job work experience gained with the sponsoring employer may be able to be used if it was in a different position. 50% of the job duties must be different than those of the offered position for which classification is sought.

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 two advertisements in a regional newspaper or one newspaper ad and in a journal. Professional jobs require three other recruitments (employer Web site, internal referral program, job fairs, college campus, recruiting agencies, Web site posting such as Craig’s List). Any resumes received in response to the ads must be evaluated to ascertain if the applicant meets the minimum requirements on the labor certification application, not to determine if the applicant is the best qualified candidate. All responses to the advertisements must be retained in the company's files.

Note: The labor certification is "job and location specific." If the foreign national is moved from a job in San Jose, described on 9089, to a job in Sacramento after the labor certification is issued but before the green card is granted, the labor certification cannot be used for that foreign national. Once a visa petition by USCIS is approved and 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 for work in a similar job at another location or for a different employer.

PERM PROCESSING

With labor market test before filing the labor certification application, an employer files the PERM application. The company must show:

• Shortage of U.S. workers in the occupation;
• No restrictive requirements
• The salary for the job offered is at least at the prevailing wage; and
• Adequate labor market test within the last six months has been conducted through sources normal to the occupation and industry.

If requested by DOL, the employer must provide a summary of its recruiting efforts, demonstrate an existing shortage in the occupation, and show that it has an opening in the occupation. The company must use different types of labor market test including newspaper ads, Internet postings, college campus recruiting, job fairs, etc.

The labor market test advertisements for PERM applications do not need to include a detailed job description or state the salary.

THE STEPS

Following are the steps for obtaining Permanent Resident Status by Labor Certification.

Step 1

Lawler & Lawler analyzes the job to determine the minimum qualifications for the position, 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

We obtain the prevailing wage from the government.

Step 4

We assist with ads and company’s other labor market test, and verification of whether there are any qualified applicants for the position. If qualified U.S. applicants are able, willing and available to perform the job are found, the labor certification should be aborted.

Step 5

Job notice is posted at company.

Step 6

The 9089 is completed and recruitment report finalized.

Step 7

The application is filed with DOL. Acknowledgment of the filing and four questions are sent to the employer.

Step 8

We work with the employer to respond to any DOL audit.

Step 9

DOL issues Labor Certification or denial.

Step 10

We prepare the immigrant visa petition, Form I-140, and file it with USCIS with the labor certification, proof that the employer can pay the salary, and proof of employee’s qualifications. The I-140 determines the EB category.

Step 11

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. One's priority date must be current on the visa bulletin for a visa number to be available and proceed. For information about priority dates see the visa/immigration overview section of this site.

Step 12

We prepare and file an adjustment of status application, Form I-485, and supporting documents with request for a work permit (EAD) and travel permit (Advance Parole). The USCIS may decide it with no interview. After it is approved, a green card is issued.

Step 12 (alternative)

After the I-140 is approved, the foreign national applies for immigrant visa at a U.S. Consulate. Some people in U.S. may choose this option, as it may be faster than adjustment of status or may be advantageous for other strategic reasons. When admitted to the U.S. with a permanent resident stamp, a green card is issued.