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Immigrant Visas: Labor Certifications

Immigrant Visas: Labor Certifications

Except for a few people, an alien must first obtain a job offer from a U.S. employer who is willing and able to demonstrate to the USCIS that there are no qualified U.S. workers available to take the job for which the employer wants to hire you. An exception applies to people who are in the “priority workers” preference category, discussed below. There are also exceptions made for persons who can fill job vacancies in fields where Congress has found to be a shortage of workers – the USCIS calls them “Schedule A” workers. There are typically three steps to the application process and the waiting period is discussed below. The children of an applicant, who are under the age of 21, and the applicant’s spouse may also obtain LPR status as “accompanying relatives” so long as they are not deemed “inadmissible.”

Five (5) Preference Categories for Employment-Based LPR Applications – Overview of Requirements

(1) Priority WorkersThis category includes three subcategories of qualifying persons: (a) persons of extraordinary ability, (b) outstanding university professors or researchers, and (c) transferring executives or managers of multinational companies. Neither a job offer, nor a Labor certifications is required for this category and the alien may commence the application process by proceeding to “Step Two” and having his/her employer file the I-140, Petition for Alien Worker.

Persons of Extraordinary Ability: You must be at the top of your field in the arts, sciences, education, business, or athletics and are able to demonstrate that your entry to the U.S. will substantially benefit the U.S. Your achievements must be universally recognized and been the subject of a definite period of acclaim.

Professors & Researchers: Teaching or research experience for a minimum of three years’ is required and you must have an outstanding international reputation. You can be sponsored either by a teaching institution or a company with a research department, which has a history of making significant achievements in research.

Multinational Executives & Managers: One year of the last three years must have been spent as an executive or manager by a qualified company. Your job in the U.S. will be in a similar position with an affiliate, branch, or subsidiary of the same company in the U.S. The government defines “executives” and “managers” precisely, and knowing those definitions are crucial to making a successful application in this category.

(2) Workers with Advanced Degrees or Exceptional Ability – This category includes two subcategories of persons: (a) advanced degree professionals and (b) persons of “exceptional ability” (not to be confused with persons of “extraordinary” ability, discussed above). Labor certification is required.

Advanced Degree Professionals: An advanced degree professional must have the equivalent of a graduate level degree or any other degree which requires post-graduate education beyond the baccalaureate degree. Further, you must be internationally recognized or outstanding in your field. An exception to the degree requirement exists where a person has a baccalaureate degree plus five years work experience as a professional.

Persons of “Exceptional Ability.”: A person must demonstrate “exceptional ability” in the arts, sciences, and business. You must be significantly more accomplished than the average person in your profession and have a degree of national acclaim. An exception to the labor certification requirement exists for a person of exceptional ability where the person can demonstrate that his or her presence will “benefit” the U.S., but it is rarely made.

(3) Professional, Skilled, and Unskilled Workers – To be considered a “professional” the person must have, at least, a baccalaureate degree or an equivalent and to be approved in this category, although less than five years’ work experience is permitted. A “skilled” worker, on the other hand, does not require a college degree, but at least two years of training or experience. The training period required for a particular field varies and the exact number of years required is published by the U.S. Department of Labor. “Unskilled” workers are those persons who cannot be categorized in any of the above referenced categories. It may include an job which requires less than two years’ training or experience. Any specific job requirements there are, you must comply with them prior to applying in this category.

The USCIS established a list of jobs called “Schedule B” jobs which have been pre-determined not to have a shortage of workers. They are generally unskilled jobs, such as restaurant workers, hotel workers, and factory workers, among others. A labor certification may still be filed for one of these jobs, but the employer will be required to present additional proof that there are inadequate American workers for the position.

(4) Special Immigrants – This category covers clergy and other religious workers, and foreign medical graduates who came to the U.S. before 1/10/1978, foreign workers for the U.S. government, in addition to other persons, not covered here.

(5) Investors – Investors willing to invest $500,000 to $1 million in a new U.S. business that will create jobs

Waiting Periods

Labor Certification in the State of Illinois has generally taken three (3) years. Visa approval after obtaining the Labor Certification is between three (3) and fourteen (14) months. Once a visa number becomes available after the expiration of the priority date (See Department of State website, www.state.gov) it will take usually another 8 to 12 months for green card approval. Those applicants who are required to obtain a labor certification are subject to a quota system which is controlled by the “priority date” assigned to your visa application when it is filed. See, Priority Dates.

Labor Certification Process – Essential Requirements

Step One: Labor Certification

Your potential employer must complete form ETA-750 which requires the employer to demonstrate, among other things, that there are no available qualified American workers to take the job offered. The form is submitted to the local state employment agency within the geographic region of your employer. In that form, the employer must verify that it will be paying the “prevailing wage,” describe the job in detail, and include minimum experience, which ought to include a description of the standard education and experience for the particular job. You should refer to the Department of Labor website for the extent of education and experience usually required for your particular job. See, www.dos.gov.

Advertising – After the Form ETA-750 has been filed, the employer is required to place an advertisement for the position, usually in the classified section of a newspaper, for three consecutive days, directing any potential applicants to the state labor department. The employer must also post an advertisement at the employer’s place of business for ten consecutive days. The advertisements must each duplicate the job’s education and experience requirements. The advertisement will specify that any applicants should inquire with the state labor department. In turn, the state labor department will refer any candidates wishing to apply to the employer. If the applicants do not meet the job’s minimum requirements, the employer must describe in what way they do not meet the job’s minimum requirements. If, on the other hand, the candidates meet the job’s minimum requirements, the employer will be required to interview them. After the interview(s), and if the employer still wishes to employ you instead any applicant, the employer must again submit to the state labor department the reasons why any U.S. worker was not acceptable. Reasons for rejection may include typical hiring concerns, such as character, work habits, etc.

Step Two: Filing of Immigrant Petition for Alien Worker, I-140

After receiving approval of the Labor Certification, or in the event that the alien worker is a “priority worker”, the I-140 will be filed with the regional service center which has jurisdiction of the geographic area of the Employer. It generally takes between three (3) and fourteen (14) months for a decision on the petition.

This petition requires that you prove your qualifications for the job. Documents will include diploma(s), transcript(s), a credential evaluation if the degree was obtained outside the U.S., letters or notarized affidavits from previous employers stating your position, employment period, and job duties. Your Employer will also need to demonstrate that it has the financial ability to pay your salary by presenting previously filed tax returns and profit and loss statements. In the event that the company is well-established or a publicly-held company, annual reports may be sufficient, or the USCIS may not ask for any supporting documentation at all.

For those who may be exempt from obtaining a labor certification as a “priority worker”, the alien will need to present documentation supporting the extraordinary accomplishments in the arts, sciences, education, business, or athletics, which includes, but is not limited to, receipts for prizes and/or awards, membership in recognized associations, material published about the alien, etc.

Step Three: Filing of the Application to Adjust Status

Once the priority date is current, the applicant may file a request for adjustment of status to Legal Permanent Resident. You may file the application (Form I-485) in the United States if, at the time your priority date is current, you still legally reside in the U.S. And, when you are eligible to file in the U.S., steps two and three of the process may be completed at the same time. This gives applicants the advantage of being able to apply for advanced work authorization and to stay in the U.S. while waiting for approval, even though the visa has expired or will soon expire.

Where, however, you reside in another country, you must file at a U.S. consulate abroad – on forms specified by each consulate – which has jurisdiction over your place of residence. If you currently reside in the U.S., but have either overstayed your visa or entered without inspection, you will also be required to return home and file in your home consulate. In each instance, you will be required to wait out the period of the applicable time bar. By either staying or entering the U.S. without inspection, you are considered by the USCIS to be temporarily “inadmissible”, which means you have violated the immigration laws and you are prevented (“barred”) from returning to the U.S., for either three (3) or ten (10) years, depending on how long you overstayed. Most people have either entered the U.S. without inspection, e.g., crossing a border on foot, or overstayed their visas – for an overstay, however, there is a 180-day grace period. There are other circumstances in which you may be deemed inadmissible, for instance, if you committed a crime. In that instance the time bar is longer. In all instances, however, you will be prevented from filing and obtaining an adjustment while in the U.S., but must apply at a U.S. consulate abroad in order to obtain approval of your petition.

Besides the adjustment forms, the alien will be required to file an Affidavit of Support (Form I-134) for a spouse and children under 21. An affidavit of Support for the applicant is, in most cases, unnecessary. Further, as in the family-based adjustment application, the alien is required to submit birth certificates, passports, police clearance, photos, fingerprints, submit to a medical exam, and in some instances, go to an interview. Interviews are infrequently requested in the employment context, so be assured that the USCIS is not aware of any illegal entries, prior orders of deportation, or criminal offenses prior to showing up for the interview, or you may find yourself detained and facing deportation charges.