FREQUENTLY ASKED QUESTIONS ON LABOR CERTIFICATION APPLICATION

Q 1. When should I file the Labor Certification Application?

Ans. The Labor Certification Application (LCA) should be filed as soon as possible. There are long waiting periods for priority dates to become available. At present these waiting dates can take up to 4 to 6 years for individuals with a Bachelor’s degree, specially if those individuals were born in countries such as India and had no cross – chargeability i.e. wife born in another country) available to them.

These waiting periods are only likely to become longer and longer as the backlogs continue to increase and the resources and budgets are cut by the congress.

There is a real danger that Consultants may run out of the six year limit and have to return to India, if they do not process their labor certification and Green Card applications in a timely manner. Additionally, consultants will not be able to stay on illegally in the country and later adjust their status as there is now a ten year bar on remaining illegally in the country.

Q 2. What are the disadvantages of filling an application with my current employer?

Ans. There are virtually no disadvantages because:

· Most employers pick up the cost of processing the labor certification and Green Card application;

· If the consultant decides to leave the employer’s services then he/she may do so at any time without any consequences;

· The consultant can then withdraw the labor certification immediately with the old employer and start a new labor certification with the new employer. Of course, the consultant may loose his or her priority date and may run out of time. In certain cases you may also have two labor certifications running simultaneously with two employers if you are not sure which permanent job you wish to maintain.

Q 3. What are the significant advantages of starting a labor certification early?

Ans. Firstly, you obtain a benefit from the current employer who will pay for your permanent residency and labor certification application.

Secondly, you can provide an early priority date in long waiting lists and avoid the possibility of having to leave the United States due to the six–year period on your H1-B running out;

Thirdly, you can leave your current employer anytime and the filing of a labor certification does not affect this decision in any way. Of course, it also allows you to make a reasoned decision as to whether you should continue with your current employer or leave your current employer and restart the labor certification process with a new priority date.

Fourthly, you obtain a benefit by becoming a permanent resident of the United States with substantial rights and economic and cultural benefits.

Fifthly, a labor certification application is never guaranteed and depends on a number of factors such as availability of U.S. workers, restrictive requirements and a myriad of other issues. In the event the application is denied the consultant may have the opportunity to pursue other options if the application has been filed early in the game.

Q 4. What if I do not intend to live in the United States and wish to return to my home country?

Ans. This may be your thinking at this point of time but many consultants change their minds after a few years and then it becomes too late to process an application in a timely manner. Besides, even if you do decide to leave the U.S., all that can happen is that the Green Card application process can either be terminated or continued if you wish to return at a later date and change your mind about living in the U.S.

Q 5. What if my spouse has filed a labor certification application – should I still file a backup labor certification application?

Ans. Unless your spouse is already a US citizen (not someone who has applied for this status), it is advisable to file a backup labor certification with your current employer. Since there is no cost involved for you, in the event your spouse’s application does not go through, you have an alternative means by which you may obtain permanent residency status. You can always drop the second application once you are reasonably sure the first application will be processed in a timely manner or your Permanent Residence (PR) has been approved.

Q 6. Does my current employer have any hold on me due to the fact that it has filed an application for permanent residency or labor certification?

Ans. Your current employer cannot hold you against your wishes due to the filing of an LC or PR application. However, circumstances may dictate that you stay on and maintain your priority date rather than leave the country at a later date due to time running out. The decision is solely yours.

Q 7. What if the proposed new employer files a Reduction in Recruitment (RIR) Application or files for a permanent job in a state with shorter processing times and places me in a permanent position in that state?

Ans. Firstly an RIR process is not guaranteed and is subject to Labor Department decisions of availability and non-availability. If the RIR is rejected by the Department of Labor (DOL), the processing times will be even longer than normal processing times. Secondly, assuming that the application was filed under the advanced degree category and assuming that the RIR process was completed without any hitches, this would still not help the consultant because the advanced degree category for individuals from countries such as India are extremely backlogged and the waiting times are even longer. Therefore, one could have an approved labor certification and I-140 petition approved, but could still run out of time if the priority date does not become available in time to file an adjustment of status.

Q 8. Will I be able to change to some other status or obtain Canadian immigration if I run out of time?

Ans. There is no assurance that INS will always allow you to change to F-1 status after 6 years in H-1B status. Even if you are allowed to change status, you cannot be employed during this period for extended periods of time. Further, if an I-140 petition has been filed, this may prevent you from changing to an F-1. Becoming a landed immigrant of Canada does not always ensure your entry and exit to and from the US.

Q 9. If I decide to leave this employer will the filing of a PR application prevent me from filing a new H-1B application or affect a new labor certification in any matter at all?

Ans. Absolutely not. The concept of dual intent allows you to obtain an H-1B without any problems and the filing of a labor certification application with one employer does not in any way prohibit or affect the filing of a new labor certification.

Q 10. My new proposed employer has indicated that through the RIR process, they will be able to process my application in a timely manner before my status expires. The employer’s attorney also feels this may be possible.

Ans. You have to examine the facts of the case carefully. Obviously the new employer wishes to employ you and will put things in a favorable light. So will the new attorney. At the same time your current employer and attorney will wish to influence you to their advantage. YOU SHOULD CAREFULLY CONSIDER ALL THE FACTS BEFORE YOU MAKE THIS IMPORTANT DECISION.

Q 11. I have already been in an H-1B status for 2 years. My labor certification was filed one and a half years ago. I am now being offered a job at a significantly higher pay scale. What should I do?

Ans. This is a personal decision. You could leave and loose your priority date and run out of time. Or you could sacrifice immediate gain of a higher salary and benefits and maintain your priority date, obtain permanent residency and then pursue better opportunities without running the risk of having to leave the country. Whatever your decision, it will not be affected in any manner by your decision to file a labor certification. The question is whether you want to be penny wise and pound foolish or not.

Q 12. I have been on an L-1 with one employer for one year, on an H-1B with another employer for 4 years, and now have been for the last one year with a 3^rd employer on an H-1B. Before completion of my H-1 can I change to H-4 as the spouse of an H-1B and get another six years?

Ans. No. Currently, according to INS regulations you can get a maximum of 6 years in H-1, H-4, L-1, L-2 status with one or different employers. Therefore you cannot get additional time in H-4 and L-2 status.

Q 13. How should I choose my attorney?

Ans. Ask your attorney the following questions:

· What is his/her level of expertise in processing Green Card applications?

· Does he/she specialize in immigration matters or do they handle other areas that take up time?

· How many staff members does the firm have to process applications? This will give you an idea of the firm’s ability to handle cases.

· What is the attorney’s success rate?

· Get references from other friends and clients but finally you should make an independent decision.

· Consult with your employer who also wants your PR process to go smoothly and will recommend the attorney who has serviced other applicants as well.

· Is your attorney candid about processing PR cases and the time periods or are you being promised the moon? Your attorney should be ethical and protect your interests as well as your employer’s.

Q 14. Can I return to my home country at the end of 6 years and spend one year abroad and then re-enter for another 6 years in H-1B status, if my permanent residency application has not been completed?

Ans. Yes you may. However, there is no guarantee that the H-1B quota would be available at this time or there is always the possibility that a consular officer may question your motives and prevent you from returning. Also, it is far better and safer to process your PR application with the INS in the United States than with a consular officer abroad.

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.