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OVERVIEW OF THE LABOR CERTIFICATION PROCESS
The labor certification process is one way that eligible workers can obtain
their legal permanent residence (the "green card") in the United States.
The labor certification process is a three step process which commences
with the filing of an application with the U.S. Department of Labor which
extends an "offer of employment" from a U.S. based company, citizen or legal
permanent resident (the Employer).
The Beneficiary of such a case is not required to be working for the employer
at the time the case is filed, but the employer must attest that the position
offered is available and that the employer is willing and able to offer the
"prevailing wage" for the position. Prevailing wages are determined by the State
Department of Labor in the State where the position is located, and are obtained
in advance of filing.
In order for a case to be approved, it is necessary to prove to the Department
of Labor that there are no qualified U.S. workers who are willing to take the
job. This is demonstrated through a process called "recruitment" which involves
running ads in a local newspaper and posting the job vacancy at the job site and
with the local State Department of Labor. Offers of employment for professional
positions require that recruitment efforts be done in three additional venues;
typically an on-line newspaper or journal, the employer’s website and an additional
newspaper. If no qualified U.S. workers apply for the position, the case can filed
30 days after the recruitment is completed.
Before our firm can begin to prepare a labor certification application for filing,
we present the employer with a detailed package of information which describes
the proposed "job offer", lists the requirements for the position, informs you
of the prevailing wage assigned by the local Department of Labor and describes
in detail the recruitment process. Based on the employer’s feedback, we may amend
the offer and/or the requirements for the position. We begin preparing the case
for filing once we have obtained the employer’s signed authorization following
review of the "job offer".
Effective March 28, 2005, the U.S. Department of Labor commenced a new system
for filing of labor certification applications called PERM. Under PERM, applications
are filed on-line or by mail directly with the U.S. Department of Labor. Before
applications can be filed on-line, Employers must register with the Department of
Labor. Although Employers no longer need to file all of their recruitment documentation
with the application, the Department of Labor may request it in some cases and such
records must be retained for five years after filing.
As of July 16, 2007, new Dept. Of Labor regulations require that the legal fees
and recruitment costs related to the labor certification filing may no longer be
paid be the worker and must be borne by the Employer. Employers are prohibited
from seeking reimbursement of these fees from the worker. Our firm cannot begin
preparing the application for filing until the employer has signed the attached
contract, agreeing to the terms and to pay the costs involved. Employers are not
required to pay any of the costs involved in steps 2 and 3 (described below)of the
process.
Once the labor certification application is approved, the Employer must file an
immigrant petition (I-140) with the United States Citizenship and Immigration Services
(USCIS) within 6 months of the approval date. Spouses and minor children of the worker
are included on the I-140 petition and are eligible to apply for their green cards at
the same time as the worker. In order to obtain an I-140 approval, the Employer must
be able to show that the company had enough money, at the time of filing and continuing
to the present, to pay the salary offered on the labor certification application.
Employers usually prove this with a tax return, annual report or audited financial
statement. If the Beneficiary has been working for the Employer, what the Beneficiary
has been earning will be considered. Neither our firm nor the USCIS share the company's
financial information with any other entity, but it is not usually possible to obtain
an I-140 approval without this information.
Before the I-140 can be approved, it is also necessary to prove that the Beneficiary
has the experience which was listed on his application. This is usually demonstrated
by letters from former employers, and where appropriate, diplomas and school transcripts.
It is sometimes possible for the Beneficiaries of approved labor certification
applications who are in the U.S. to file their green card applications
concurrently with the Employer's I-140. This approach is only advisable if
the strengths of the immigrant petition have been carefully evaluated. If the I-140
is denied, the Beneficiary's green card application will be denied as well.
In addition, the employment category for one's case must be "current" before this
option can be exercised When the worker files his application for his green card,
the employer must provide an "offer letter" repeating the offer of employment stated
on the initial labor certification application. The worker must be working in the
position offered and earning the salary offered at the time that he or she obtains
the green card. Evidence must be provided through another letter from the employer
and paycheck stubs.
For cases filed for future workers who are outside of the United States, the
I-140 approval is forwarded to the U.S. embassy designated on the application.
After the worker and his family submit immigrant visa applications to the embassy,
they are scheduled for interviews with a consular officer. If the worker is approved,
he and his family are admitted to the U.S. as permanent residents. The Beneficiary is
then required to report for work with the employer who petitioned for him.
Depending on the position offered in a given case, obtaining permanent residence
through a labor certification case can take anywhere from 18 months to 5 or more
years. Although we do our best to provide an accurate estimate of the time frame
involved, many ever changing factors render it impossible for us to guarantee a
specific time frame. Employers who commence a labor certification
case on behalf of a worker are under no obligation to continue the case should
they no longer want to or be able to assist a worker in obtaining residence.
We certainly hope therefore, that all employers fully understand the process
and the commitment before endeavoring to start the process.
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