OVERVIEW OF LABOR CERTIFICATION
The obtaining of a labor certification is the principal method by which most foreign national workers receive employment-based green cards in the US. Foreign national workers who are multinational managers or executives, or who are determined to belong to classes of exceptionally accomplished individuals are exempt from the labor certification process. Almost all other foreign national workers must undertake the labor certification process in order to get a green card.
Although the entire process is often referred to as labor certification, there are, in fact, three separate stages in the employment based green card application process. The three stages leading to the issuance of the green card are: 1) the filing of the labor certification application, 2) the filing of the I-140 visa petition, and 3) the filing of the adjustment of status application (or consular processing for an employee who is outside the US).
STAGE ONE: CERTIFICATION OF THE LABOR CERTIFICATION APPLICATION
In order to get a labor certification application certified, an employer must demonstrate to the Department of Labor (DOL) that there are no qualified, available and willing US workers (US citizens, lawful permanent residents, or refugee/asylees) in a particular geographic region for the job in question. The employer is required to undertake active, transparent recruitment and provide proof of this recruitment to the DOL. The DOL must be persuaded that the employer has actively recruited for the position, no minimally qualified US worker has been refused an offer for the position sought, and the position was offered to other US workers with the prevailing wage and working conditions stated on the application. In addition, the employer must retain proof of this recruitment.
Filing of the labor certification application is conducted through the Program Electronic Review Management (PERM) program. In addition to automating major aspects of the labor certification application filing process, PERM established procedures called audits for the agency to request additional information or documentation. Actual recruitment documents (e.g., advertisements) and resumes are not submitted with the application, but must be retained with a "Recruitment Report" for five years. Such documents may be requested in the event of an audit of an employer under a random selection process or for cause.
The PERM procedure requires either electronic filing of the application or filing by mail. Applications filed electronically are generally certified more quickly. If filed electronically, the signatures of the employer, employee and attorney on the application form will not be required until the form is returned with the certification.
Following the filing, a PERM application can be certified (approved) without further inquiry by the DOL, or the DOL may conduct an audit before certification. In some cases, the DOL audit will ask for a business necessity explanation of education or experience requirements considered by the agency to exceed the normal requirements for the position. The DOL may also direct that supervised recruitment take place. Supervised recruitment would require the placement of additional advertisements for the position that direct US applicants to send resumes directly to the DOL.
In the past, there were no restrictions as to who could pay the legal fees or costs for the labor certification process. As of July 16, 2007, employers must pay all fees and costs associated with the labor certification. An employer is prohibited from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification. "Payment" includes, but is not limited to, monetary payments, deductions from wages or benefits, kickbacks, bribes, tributes, goods, services and free labor.
For specific requirements of the PERM application, important process guidelines and strategic considerations, see the articles below, "PERM Procedures" and "PERM Screening Memo."
STAGE TWO: THE VISA PETITION
Once the labor certification application has been certified by the DOL, the remaining stages of the green card application process are handled by the Immigration Service. Having secured an approval of the labor certification application (based on the DOL's acceptance that the employer could not find an able, qualified, available and willing US worker for the position offered), the employer must then submit a petition (Form I-140) to the Immigration Service. This petition requests an immigrant visa on behalf of the employee who was the subject of the labor certification.
At the I-140 filing stage, the employer explicitly requests the particular employment preference category for the employee. EB-2 is for those with an advanced degree (i.e. Master's degree or higher) or its equivalent (i.e., a Bachelor's degree plus 5 years of experience). EB-3 is for both professionals with a Bachelor's degree and skilled workers who have two years of specialized education, experience or training.
The processing times vary between the Nebraska and Texas Service Centers and by employment classification of the I-140 petition. Processing times can even fluctuate within a Service Center among the same class of I-140 petitions hence making it very difficult to predict when a petition will be adjudicated.
When the I-140 petition is submitted to the Immigration Service, the employer documents the continued existence of the job offer, its ability to pay the salary offered at the time of the approval of the employee's green card, and that the beneficiary/employee possesses the qualifications specified in the approved labor certification. The Immigration Service exercises very close scrutiny regarding an employer's ability to pay the required wage. Several kinds of "primary evidence" are considered by the Immigration Service in evaluating an employer's ability to pay: the employer's tax returns, the beneficiary's Form W-2, audited financial statements of the employer, and the employer's annual report, if available. The Immigration Service may also consider "secondary evidence," such as proof of personal assets in the context of sole proprietorships, an accountant's expert evaluation of the employer's financials, proof of the employer's ongoing and future contracts and other documentation of an employer's ability to pay the required wage.
Finally, the Immigration Service reviews the qualifications of the proposed beneficiary to assess whether the beneficiary meets the requirements set forth in the labor certification and of the requested classification. If he or she does, the Immigration Service approves the petition.
At the time the I-140 is filed, the petitioning company is asked whether, once the petition is approved, the employee will apply for permanent residence in the US (known as adjustment of status) or will apply for immigrant status at a US Consulate outside the US (application for an immigrant visa through consular processing). Both paths result in the employee and his or her spouse and unmarried children under 21 (when the I-140 is filed) becoming permanent residents. (Note that the Child Status Protection Act of 2002 allows unmarried children who have passed the age of 21 to obtain permanent residence as dependents of employees if certain strict filing requirements are met.) Adjustment of status and consular processing are simply two different procedural routes to the same end.
Upon approval of the I-140 petition and IF an immigrant visa is available under the appropriate quota classification, the employee and his or her family proceed to the third and final phase in the permanent resident process. Please note that as discussed below, an employee may choose to file for adjustment of status at the same time that the I-140 is filed, if an immigrant visa is available under the preference quota and if they are physically present in the US at the time of filing.
STAGE THREE: ADJUSTMENT OF STATUS OR IMMIGRANT VISA APPLICATION THROUGH A US CONSULATE
After the Immigration Service approves the employer's I-140 visa petition, the employee can proceed to the third and last stage of the process as long as his or her priority date is current. Regardless of whether one applies for adjustment of status in the US or requests an immigrant visa through a US Consulate, spouses and unmarried children under 21 can also file at the same time as the employee and are processed simultaneously.
As discussed above, the employee may file for adjustment of status at the same time as the I-140 is filed if a visa number is available under the preference quota. If filing for adjustment of status, all applicants and dependents must be physically present in the US at the time of filing the application. Unlike the adjustment process, consular processing cases may only be processed following the approval of the I-140 visa petition.
When applying for adjustment of status, the Immigration Service examines the applications to confirm that the employee and his or her immediate family members are eligible to become lawful permanent residents of the US. Upon filing the adjustment application, the employee and his family members can also apply for employment authorization (EAD) and permission to travel (Advance Parole).
If the consular processing path is selected instead of adjustment, the Immigration Service will forward the approved I-140 petition to the Department of State's processing center in New Hampshire, the National Visa Center (NVC). The NVC will notify the beneficiary of receipt of the petition and, after receiving the requested fees and certain forms and documents. The NVC will then send the file to the appropriate US consulate for final processing, which includes a consular interview.
Once the employee and his or her dependents file adjustment of status applications in the US, they have the right to remain and work in the US (with a valid, approved employment authorization document) until the Immigration Service finishes processing the adjustment application. Should they choose to process through a US consulate instead, they do not have authorization on account of their green card application to live and work in the US while the Department of State processes their immigrant visa applications. Instead, they must have independent authorization to live and work here, such as through a valid H-1B, L, or other nonimmigrant visa status.
