In order to obtain permanent resident status (resulting in the acquisition of a "green card") through employment in the United States, the process generally requires the immigrant and his or her employer to show that there are no qualified American workers available or willing to accept the position offered to the prospective immigrant. This process is known as "labor certification" and it involves the oversight of the United States Department of Labor as well as the U.S. Immigration Service at later stages. The entire process of obtaining permanent residence consists of three stages: the labor certification application, the visa petition, and the adjustment of status application (or less frequently consular processing). In exceptional cases, the labor certification process may be avoided.

Stage One: The Labor Certification Application

An application for labor certification is a request by an employer for the U.S. Department of Labor (DOL) to certify that the employer has demonstrated a labor shortage of a position in a particular geographic region. To reach this conclusion, the DOL must be persuaded that the employer has actively recruited Unites States workers at the prevailing wage and working conditions for the position.

The DOL has established two paths for processing these applications: a normal path and an expedited path called a "Reduction in Recruitment" (RIR) request. Under the normal path the employer, through his attorney, submits the labor certification application to the State Employment Agency. This Agency oversees the test of the labor market through a recruitment process for the position. The goal of this process is to determine whether there are qualified U.S. workers available for the position. Under the normal path, the State Employment Agency internally lists the job at its office for 30 days, the employer runs an advertisement in a newspaper for three consecutive days, and the employer posts a job announcement at the work site. All responses to this recruitment process are sent to the State Employment Agency, which screens the resumes and refers the resumes of qualified applicants to the employer for review and/or interview. After all qualified applicants have been interviewed, the State Employment Agency forwards the application, the original resumes of the applicants and any responses or clarifications from the employer to the DOL for final review.

The DOL then reviews the employer's response to the recruitment instructions. If the agency agrees that the employer had justifiable reasons for rejecting the applicants who responded to the recruitment, it will issue the certification and that completes the labor certification process.

The "RIR" Process

The RIR process is based on an employer's ongoing efforts to recruit qualified workers. In this scenario, the employer submits an application for certification with evidence that the employer has engaged in at least 6 months of extensive recruitment according to industry standards for the position offered to the prospective immigrant. The DOL will only consider recruitment from the six-month period directly preceding the filing of the labor certification. The State Employment Agency conducts an initial review of the RIR application, which may include requests for more information or clarifications. Once the state agency has finished its review of the application, the agency sends it to the DOL office for further review. If the DOL finds that the employer conducted sufficient recruitment during the six-month pre-filing period, and that the conditions of employment including the wage offered and the qualifications sought are standard to the occupation, the employer should receive a certification from the DOL that there are no qualified U.S. workers available for the position offered.

Documents to Demonstrate Recruitment for RIR Applications

The following kinds of documentation may be used to demonstrate that the employer has actively recruited over a six month period:

• Tear Sheets from at least 3-4 Advertisements in Newspapers of General Circulation
   
  
• Advertisements in related industry or trade journal
   
  
• Evidence of Participation in Job Fairs such as Program Guides or Invoices
   
  
• Copy of Recruitment through Web Sites
   
  
• Evidence of On-campus Recruiting such as Program Guides or Invoices
   
  
• Radio Recruitment Invoices or Ad Scripts
   
  
• Announcements from Employer Open House Recruiting Events
   
  
• Evidence of an Employee Referral Program
   
  
• Letters or Invoices from Recruiting Agencies
   
  

Stage Two: the Visa Petition

Once the DOL approves the labor certification application, its participation in the process is over, and all processing occurs with the BCIS. Following approval of the labor certification for the position offered to the prospective employee, the employer petitions the BCIS to issue an immigrant visa with the particular employee as the beneficiary. The BCIS reviews the qualifications of the proposed beneficiary to see if he or she meets the requirements set forth in the labor certification. If he or she does, the BCIS approves the petition.

Stage Three: Adjustment of Status Application

After the BCIS approves the visa petition, the candidate can file an application for adjustment of status (the process whereby a nonimmigrant requests his or her status changed to that of an immigrant), as long as his or her priority date is current. Spouses and unmarried minor children of the primary immigrant may also file for adjustment as derivatives of the employee. The BCIS examines the applications to confirm that the candidate and his or her derivatives are eligible to become residents of the United States. Applicants for adjustment, including the derivative relatives, may receive permission to travel and work while the adjustment application is pending.

Occasionally, the candidate or his or her derivative relatives may wish or need to process their applications through a United States Consulate abroad instead of filing the applications with the BCIS in the United States. In such cases, the BCIS is requested to send the approved visa petition (the I-140 approved by the BCIS after stage two) to the Department of State. Once the Department of State receives the petition at its processing center in New Hampshire, it notifies the beneficiary and sends the relevant paperwork to the appropriate United States consulate for final processing.

Employees rarely choose this second option. Once the employee and his or her dependents file adjustment of status applications, they have the right to remain and work in the United States until the BCIS finishes processing the adjustment. But when they choose to process through a United States consulate, they do not have the right to live and work here while the Department of State processes their papers. Instead, they must have independent authorization to live and work here until the consulate overseas schedules them for their final visa interviews.