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 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. As a cut off one MUST start the process before the end of the 5th year in H-1B status.
Q 2. What are the disadvantages of filling an application with my current employer?
Ans. There are virtually no disadvantages because:
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.
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 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. Will I be able to change to some other status (F-1) or obtain Canadian immigration if I run out of time?
Ans. There is no assurance that USCIS 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 8. 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 9. 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 10. 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 3rd 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. Yes. Time spent in H-4 or L-2 status does not count towards the maximum permissible H-1B/ L-1A limit. If your wife has an H-1B or L-1 status of her own then you can remain in the US at the end of your maximum permissible limit by changing to a dependent status based on her work authorized H-1B/ L-1 status.
Q 11. How should I choose my attorney?
Ans. Ask your attorney the following questions:
Q 12. 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. Also, it is far better and safer to process your PR application with the USCIS 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 Jethmalani & Nallaseth PLLC and the viewer.