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LABOR CERTIFICATION AND LAWFUL
PERMANENT RESIDENCE
Labor
Certification purports to serve two purposes; to benefit the U.S. economy by
granting permanent residence to foreign workers whose skills are in short
supply and to protect the labor market from alien workers whose skills are
common and who would displace U.S.
workers and/ or depress wages.
It
is an expensive, time consuming procedural morass based on an "offer of
employment" and a subsequent finding by the U.S. Department of Labor that you
are not taking a job from a "qualified U.S. worker". It is not, however,
required that you actually be employed by the employer. The certification is
based on an "offer" of employment that need not commence until after legal
permanent residence is granted.
There
are five Employment Based (EB) Preferences. Labor Certification applies only to
EB2 (Advanced Degree Holders and Persons of Exceptional Ability) and EB3
(Skilled Workers, Professionals and Other Workers). Certain EB3 applicants can
avoid Labor Certification by way of "National Interest Waivers". "Skilled
Workers", by definition, occupy jobs that require at least two years of
training or experience.
Because
the "preferences" (quotas) are oversubscribed, visas are currently unavailable
for EB3 applicants. Anticipate a lengthy wait. EB2 visas are currently
available except to applicants from India and China who need
to wait several years. Visas become available under the "preferences" when your
"priority date" is reached. Your "priority date" is the date your Labor
Certification application was filed.
Before
filing there are a number of preliminary steps. First, determine the correct
category you belong to (as defined by the U.S. Department of Labor). You must
then collect documentation stating you fill the minimum requirements for your
intended job position and that your intended employer is able to pay the
proferred wage. You must also find the "prevailing wage" from the SWA (State
Workforce Agency) and "test the labor market" by advertising the job in the
mass media, posting at job sites online, as well as listing with the SWA. This
office will assist in defining the position as narrowly as legally possible. If
anybody responds to the postings, it must be found that they don't fit into
your category.
After
these preliminaries are completed your Labor Certification Application is filed
with the Department of Labor using the PERM
(Program Electronic Review Management) system. It will take about six months
for PERM to
process your application. After the approval, your employer must petition for
you. When this petition is approved, and most are, you will be eligible to
apply for permanent residence as soon as your "priority date" is reached.
Your spouse
and children are covered by your petition. In the case of a spouse, the wedding
must have taken place before your Adjustment of Status application is approved.
If you are "in
status" (in the United States with a current, unexpired visa) you will then
have the option of applying for your "adjustment of status" at your local USCIS
office or applying for an immigrant visa at a U.S. Consulate in your country.
This office strongly recommends adjustment with USCIS since Consular processing
is risky and often delayed.
Labor
Certification, like most immigration policy, is controversial, especially among
opponents of immigration. You don't have to oppose immigration, however, to
understand that posting a notice for a job that has already been filled is a
waste of time for those who respond.
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