LABOR CERTIFICATION
When an alien seeks to become a legal
permanent resident (Green Card
holder) of the United States, he/she must usually apply under the general
categories of either family based sponsorship
or employment based sponsorship. Before
such an application is submitted to the Immigration and Naturalization Service
(INS), a Labor Certification approval
must be obtained.
The main object behind Labor Certification
is to ensure that a U.S. worker does not lose his/her job opportunities to
an alien.
When a U.S. employer gives an offer of a full-time, permanent job to an alien, the employer must submit a Labor Certification form (ETA 750A & B) showing that a valid job exists and there are no qualified U.S. workers to fill the position. This form is first sent to the U.S. Department of Labor (DOL), and after their approval, it is forwarded to the Immigration and Naturalization Service (INS) along with the other documents required for a work permit.
The documents to be sent to the DOL along with the Labor Certification form are:
a)
a job offer letter, signed by the employer, describing the
job duties and salary
b)
a statement, signed by the alien, giving his/her
qualifications and experience
c)
documentation of the alien’s qualifications and experience
d)
a proposed advertisement
e)
internal posting notice at the employer’s company
Labor Certification is a
time-consuming process and requires the co-operation of the employer. There is
usually not much expense involved for the employer, but he/she has to submit
several forms and documents along every step of the way.
1)
The employer must place an advertisement of the required position
in a local newspaper, describing the duties,
hours and salary.
2)
The advertisement must run for at least three consecutive
days.
3)
The employer must wait for 30 days and keep track of any job
applicants.
4)
If no qualified U.S. worker is available, then the Labor
Certification application for the alien is filed with the DOL.
It is very important that the
employer agrees to pay the prevailing wage for the type of job offered. If
he/she offers the alien a salary below the prevailing wage, it will not be
approved by the DOL.
Only after the employer can prove
that there are no U.S. workers qualified or available for the position, and
that the job offered corresponds to DOL regulations, will the Labor
Certification be approved.
There is no fixed processing time
taken for DOL approval, but can take several months.
After the Labor Certification has
been approved, the next stage of processing is to file an employment-based petition
(Form I-140) or a family based petition (Form I-130) with the INS. Once
approval of this petition is obtained from the INS, the alien is ready to make
a final application towards obtaining permanent residency.
If an alien is physically present
in the United States and has been in valid legal status since his/her entry,
he/she can obtain his/her Green Card without leaving the U.S., through a
process called ‘Adjustment of Status’. If he/she is not eligible for this, either
because he/she is not physically present or because he/she is out of legal visa
status, the process may be completed at a U.S. Consulate, and is called ‘Visa
Processing’.
Employers who need to use alien
workers for a temporary period in professional occupations must file Labor
Certification applications stating that they will pay the appropriate wage rate
to the alien, that they have posted notice of their intent to employ alien
workers and that there is no strike or lockout at the place of employment.
Agricultural employers who
anticipate a shortage of domestic workers are allowed to bring in non-immigrant
aliens to the U.S. to perform agricultural labor that is of a temporary or
seasonal nature. The employer must file an application with the DOL, showing
that there is not enough U.S. workers who are qualified, willing and able and that
the employment of aliens will not affect the job chances of a U.S. worker.
Under this classification,
employers may hire certain skilled or unskilled alien workers (housekeeper,
stable attendant, sports instructor, etc.) for a temporary period of one year,
which may be extended, to a maximum of three years. Although this labor
certification process is very similar to the one for permanent residence
applications, it is not so extensive and time consuming.
The DOL admits that the labor
certification process is burdensome and time-consuming for both the applicant
as well as the government and takes an average of about nine months to
complete. In order to help alleviate this burden, the DOL has designated
certain occupations that have an acute dearth of personnel. These are known as
‘pre-certified’ positions and are listed on the Labor Department’s Schedule A,
Group I. These positions do not require individual permanent labor
certification. At the moment, only two such pre-certified occupations are
listed, viz. registered nurses and physical therapists. This would help medical
institutions by relieving them of the labor certification process when hiring
persons in these positions.
The requirements for the two
positions are as follows:
a)
Physical
Therapists – a letter from the state licensing authority for the state of
intended employment must be submitted to the INS with the Labor Certification
Forms; the letter must state that the alien is qualified to take that state’s
written licensing examination for Physical Therapists.
b) Professional
Nurses - the Professional Nurse must have passed the examination given by the
commission on Graduates of Foreign Nursing Schools (GFNS) or must have a full, unrestricted license to practice
nursing in the state of intended employment. This category consists of
professional or registered nurses only. A licensed practical nurse is not
considered a Professional Nurse under Group I.
Note : The labor
certification has now been shortened considerably for certain job positions.
This process is known as Reduction
in Recruitment Process.
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The information in this article is of a general
nature and may not apply to any specific or particular circumstance. It is not to
be construed as legal advice and does not establish an attorney-client
relationship between The Law Offices of Cyrus S Nallaseth and the viewer.