There are several ways of applying for permanent residence (“green card” status). The most common method is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position offered and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers.
Generally, this will be done through the process of RIR (Reduction in Recruitment) labor certification, which is issued and regulated by the U.S. Dept. of Labor (DOL).
One very common misunderstanding about labor certification is that it is about the alien employee and not the company. Conceptually, these cases are not about the alien. The application is submitted by the employer, and DOL certifies the position. In this process, the key issue is showing and establishing to the DOL that a ‘real-world’ pattern of recruitment has taken place for six months immediately preceding filing and that the company truly cannot find qualified, able and willing U.S. applicants, or at least cannot find enough of them, to fill all the job openings.
Our job, as immigration counsel, is to help the employer to organize and coordinate these efforts so that a proper 6-month pattern can be shown and an approvable RIR case filed and certified on behalf of a non-citizen employee. In the end, it must be clear to DOL that giving the alien a ‘green card’ will not adversely affect the U.S. labor market.
Once the labor certification is approved, it provides the basis for the employer to file an I-140 petition with BCIS. At this time, with the change in the immigration law in 2002, we can now file the employee’s and the dependent family’s I-485 application concurrently with the I-140 petition. This means the alien worker can also apply and obtain Employment and Travel Authorization even before the approval of the I-140 immigration petition.
Based on the above-general explanation, let’s now explore some of the common mistaken beliefs about this process and understand the issues correctly.
1. What positions qualify for labor certification?
Although most positions can be certified, not all positions and all aliens can qualify for labor certification just because a U.S. employer wishes it. The offered position must require either specialized bachelor’s (and higher) degrees or at least two years of specialized training or experience. With respect to the experience requirement, the experience the alien gained with the sponsoring employer may not be counted as qualifying.
There is a common misunderstanding that the certifiable positions must be certain occupations that are supposedly experiencing a shortage problem. On the contrary, most jobs are considered skilled and can be certified with the exception of semi-skilled or unskilled positions that do not even require two year of specialized training or experience. For instance, DOL maintains a list of occupation for which the DOL has determined that there are sufficient numbers of qualified U.S. workers available. These are semi-skilled or unskilled positions for which U.S. workers can be trained quickly to perform the job duties. The list includes: assemblers, gas station attendants, parking lot attendants, bartenders, bookkeepers, caretakers, cahiers, chauffeurs and taxi drivers, hotel cleaners, clerk typists, short order cooks, housekeepers, janitors, kitchen workers, farm laborers, mine laborers, nurses’ aides, packers, porters, receptionists, sales clerks, sewing machine operators, warehouse workers, telephone operators, etc.
More importantly, any proposed position must be discussed with a qualified attorney to determine if it is a skilled position and is certifiable.
2. What is required of the sponsoring employer?
The Employer has to have existed for one year and has the ability to pay the proposed salary that is above the prevailing wage.
On a special note, if the sponsoring employer is related by blood or marriage, he or she will have to make it very clear that a bona fide job opportunity has existed and a qualified U.S. worker would have been hired.
3. Recruitment
Recruitment is not a simple paper advertisement but has to be real world recruitment. The proposed position must be carefully written because the labor certification procedure is not to locate the most qualified or best candidates but to find minimally qualified worker. The employer may not cite personal preferences or intuitions as a reason for not hiring an otherwise qualifying job applicant.
Also, upon receipt of the application, DOL will examine the pattern and also look into the employer’s recent hiring experience and layoffs to make sure it is real.
In summary, labor certification is available to all employers who wish to hire a foreign worker for a specialized or skilled position for which they cannot find and secure a U.S. worker. However, the LC process, although close to the real-world practice, requires following the rather specific DOL regulations and guidelines and meeting standards, that are sometimes contrary to the common sense, it is extremely important to seek counsel’s advice and properly organize and present the application.
