IndiaPost.com - Overview of employment-based immigration

Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. Employment-based immigration is limited by statute to 140,000 persons per year. The process is generally three fold: a) The employer must first obtain a "labor certification" from the US Department of Labor (DOL); b) the employer applies for immigrant visa classification under the employment-based second or third preference; and c) the foreign national applies for lawful permanent residency or the "green card" through adjustment of status in the United States or consular processing overseas.

I. Labor certification

In most cases the employer must obtain "labor certification" from the DOL confirming that there are an insufficient number of US workers able, qualified and willing to perform the work for which the foreign-born individual is being hired.

To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a US citizen or permanent resident qualified to take up the position. The employer should have also offered the position at the normal or prevailing wage.

The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered. Nor can the requirements be tailored to the foreign worker's specific skills and qualifications.

A test of the labor market is generally done through advertisements and other forms of recruitment. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons. A labor certification is only a first step in the permanent resident process to obtain the "green card."

Until recently, it has been a lengthy process and does not give authorization for a foreign national to remain or work in the United States unless he or she is in another nonimmigrant visa status that authorizes work, such as an H-1B visa. In some regions, the process used to take several years.

a. Describe the Various Labor Certification Programs?

Before March 28, 2005, the process could be expedited through a procedure known as "Reduction In Recruitment" (RIR). If the employer conducted a good faith effort to recruit US workers for a period of six months prior to the filing of a labor certification and failed to find a qualified US worker, the DOL could rely on the employer's efforts to forgo recruitment under its supervision.

RIR procedures varied from region to region, though the labor certification was approved more quickly than a traditionally filed labor certification application where recruitment took place under the DOL's close supervision.

Also, in most DOL offices, an RIR application was no longer processed so expeditiously because of growing backlogs. Effective March 28, 2005, the DOL streamlined the labor certification process under a system called Program Electronic Review Management (PERM).

An employer is required to place two Sunday advertisements for the position. For professional positions, the employer has to conduct three further recruitment steps. The employer also needs to place a 30-day job order with the State Workforce Agency (SWA), as well as obtain a prevailing wage determination from the SWA.

Furthermore, the employer has to internally post a job notice for 10 days. After the employer has completed the mandated recruitment steps, it may electronically file a PERM application attesting that it has undertaken the necessary recruitment under PERM as well as attesting to various other requirements within 180 days from the earliest recruitment step.

PERM promises to certify a labor certification within 45 to 60 days. However, the DOL may select an application for an audit or for supervised recruitment and it would exercise this scrutiny for both problematic and random applications.

Recently, most applications have been selected for an audit. Employers may re-file applications under PERM even if an application was filed prior to March 28, 2005. If the re-filed PERM application is identical to the old application, the employer can request that the old filing date be assigned to the new PERM filing. Since March 28, 2005, cases filed prior to PERM have been shifted to Backlog Reduction Centers in Philadelphia and Dallas. The DOL has estimated that it has nearly completed the processing of all pre-PERM cases.

b. Are There Any Ways To Expedite The Labor Certification Process?

Physical therapists and professional nurses have been exempted from the labor certification requirements. Labor certifications for college and university teachers and performing artists can also be expedited through a process known as a "Special Handling."

c. Can Labor Certification Be Avoided Altogether?

Labor Certification is only required for individuals applying under the employment-based second and third preference categories (see below). Individuals who qualify under the employment-based first preference do not require a labor certification.

The three categories under the first preference are:

(I) Persons of Extraordinary Ability,

(ii) Outstanding Professors and Researchers; and

(iii) Multinational Executives or Managers. Applications requesting a waiver of the job offer requirement in the national interest under the employment-based second preference also do not require labor certification. (to be continued)