Background

If a person does not have close permanent resident or United States citizen relatives, has not received refugee or political asylum status, has not won the “diversity visa” lottery, or does not have $500,000 to $1,000,000 to invest, only one alternative is left – immigration through employment. This can be a lengthy, complex, and expensive process. This document describes the steps in the labor and permanent residency process used to attain immigration through employment.

There are six categories of people who can immigrate to the United States based on employment:

1. Persons of extraordinary ability (EB-1).
2. Outstanding professors and researchers (EB-1).
3. Certain multinational executives and managers (EB-1).
4. Religious workers.
5. Members of the professions holding advanced degrees (above bachelor’s), or persons of exceptional ability in the sciences, arts, or business (EB-2).
6. Professionals, skilled workers, and other workers (EB-3).

Categories 5 and 6 require an employer to demonstrate that there is a shortage of U.S. workers for a particular position by going through a process known as Application for Alien Employment Certification. For convenience, this is usually referred to as labor certification.

What is a Labor Certification?

A labor certification is confirmation from the Department of Labor that an employer has proven two things:

  • There are not sufficient U.S. workers available for a particular position; and
  • The person who is trying to immigrate based on employment will be paid the prevailing wage.
  • As a practical matter, not all persons nor all potential jobs in the United States qualify for a labor certification. Before attempting a labor certification, a candidate must have the following:

    • An employer. There must be a United States employer, willing to offer full-time employment. A person in business for themselves cannot file a labor certification on their own behalf.
    • A set of skills that are not in abundance in the United States. The primary purpose of the labor certification process is to show a shortage of United States workers. For this reason, persons with no skills, education, or experience which are out of the ordinary, will generally find it very difficult, if not impossible, to obtain a labor certification.
    • A position which requires those skills. The alien’s mere possession of a set of skills will not ensure a labor certification. There must be a job that requires the use of those skills.
    • An employer willing to pay the prevailing wage. Therefore, the employer must be willing to pay the salary that is normally paid to other United States workers performing the same job duties.
    • The Labor Certification Process

      In 2005, the Department of Labor enacted the so called “PERM” rule. Using a new form, Application for Permanent Employment Certification (ETA 9089), employers and their authorized representatives go to the government website located at http://www.plc.doleta.gov to complete and file the form electronically. Users must register on-line in order to have access to the new system. A priority date is assigned as of the date the electronic submission is accepted for filing. No supporting documentation is filed with the ETA 9089. Instead, the employer must maintain supporting documentation in the event an audit is required or the U.S. Department of Labor.

      Once the ETA is certified, the original, signed ETA 9089 must accompany a Form I-140, Immigrant Petition for Alien Worker, when it is filed with the Immigration Service (“U.S. Citizenship and Immigration Services”, or “CIS” for short.

      Case Preparation – A determination of the actual minimum requirements

      An initial step in the process involves a determination of the actual duties of the subject job offer and the employer’s actual minimum requirements for the job. Determining the job requirements can be a difficult balancing act: If there are too few requirements, the actual requirements may not be fully stated, making many United States workers appear to be qualified. If there are too many requirements, the Department of Labor may deny the labor certification, by finding that the employer’s requirements are too restrictive. The prevailing wage determination will also be based, in part, on the stated job requirements. Finding the proper balance is extremely important.

      Prevailing Wage Determination

      The wages offered on labor certification applications must be no lower than the prevailing wage rate for the occupational classification in the area of employment. The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.

      Before filing the ETA 9089, employers must receive a prevailing wage determination from the State Workforce Agency. If the job opportunity is not covered by a union agreement, the SWA bases its wage determination on the Occupational Employment Statistics survey (OES), which is a national survey managed by the Bureau of Labor Statistics (BLS) which provides a prevailing wage for every occupation in every area of intended employment in the United States. The OES provides for 4 levels of wages commensurate with experience, education, and the level of supervision. Employers may submit acceptable wage data from private surveys to the SWA as an alternative source for determining the prevailing wage.

      Mandatory Pre-filing Recruitment Steps

      The U.S. Department of Labor’s regulations provide detailed requirements for the recruitment effort which an employer must undertake prior to the filing of the ETA 9089. The rule specifies that nearly all of the recruitment steps must take place no earlier than 180 days and no later then 30 days prior to the filing.

      In-House Posting: The employer must post notice of the job opportunity at its place of business for at least ten consecutive business days. The primary purpose of the posted notice is to give employees an opportunity to comment on the application. If the job opportunity is covered by a union agreement, rather than posting a notice, notice must be given to the bargaining representative.

      State Job Order: The employer must place a job order with the State Wage Office for a period of 30 days.

      Newspaper Ad: The employer must advertisement the position in a newspaper of general circulation in the area of intended employment.

      Professional jobs require additional recruitment. If the job offered is one for which the DOL has determined that a bachelor’s or higher degree is a usual education requirement, at least three additional recruitment steps must be selected from a list of alternatives which includes such modes of recruitment as web-based recruitment, job fairs, on campus recruitment, private employment firms, and trade or professional publications.

      Review of United States Applicants

      The employer must review the qualifications of any job applicants to determine whether one or more applicant, in fact, meets all of the requirements. If an applicant does not meet one or more of the job requirements the employer will need to create a written record explaining why the applicant is not qualified for the position. If a person responds who meets all of the requirements, and actually wants the job, the employer will be unable to establish that there is a shortage of U.S. workers qualified, available, and willing to perform the duties of the job offered and the application process will not be able to move forward. However, the employer is not required to fire the alien candidate and hire a qualified United States worker. The regulations only state, in such a situation, that no labor certification will be granted.

      What Does An Approved Labor Certification Mean?

      Approval of the labor certification is the first step towards permanent residence. An approved labor certification merely shows that the Department of Labor has determined that there is a shortage of United States workers for the particular position.

      An approved labor certification does not provide work authorization. If the candidate is legally in the United States and has work authorization, for example, as an H-1B temporary worker, the candidate will need to maintain that work authorization until the rest of the permanent residence process is completed. Nor does an approved labor certification legalize or extend a person’s stay in the United States. Again, an approved labor certification is merely the first, very important step towards permanent residence. It is not related to legal nonimmigrant status or to the continuation of legal stay in the United States.

      A labor certification is valid only for the particular job opportunity and for the area of intended employment stated on the application. A labor certification is valid indefinitely as long it is submitted within six months of issuance to U.S. Citizenship and Immigration Services in support of a Form I-140, Immigrant Petition for Alien Worker. Continue validity of the labor certification also requires that the employer remains willing to hire the alien candidate; the employer continues to do business in the same location; and the job offered remains the same.

      Visa Petition

      Once the labor certification has been approved, it must be submitted within six months to the U.S. Citizenship & Immigration Services in support of a Form I-140, Petition for Immigrant Worker. At the visa petition stage, two primary factors must be proven to the Immigration Service:

      1. that the candidate meets all of the employer’s requirements for the position which were listed in the labor certification, and
      2. that the employer can pay the salary being offered.

      Documentation of both of these factors must be submitted to CIS along with the approved labor certification when the visa petition form is filed.

      Permanent Residence

      If the candidate is eligible to apply in the United States, and if a visa is available to the applicant under the appropriate preference category to applicant’s with the candidates priority date, the candidate may apply for adjustment of status to that of a lawful permanent resident concurrently with the filing of the visa petition. If the candidate’s priority date has not been reached at the time of the filing of the visa petition, the adjustment application may be filed at such time as visas become available. If the candidate is not eligible to apply for adjustment of status, he or she will have to process final paperwork outside the United States and have a visa interview abroad, usually at the U.S. Embassy in candidate’s country of residence or citizenship.