For those who wish to live and work in the United States permanently on the basis of their employment or job skills, the Employment Based (EB) series of visas provides the most direct, and traditional pathway to green card holder status and citizenship. For many intending immigrants seeking to put down roots in the United States, satisfying the labor certification process is the first step towards a green card. For immigrants seeking to immigrate to the U.S. on the basis of a familial relationships, labor certification is not required. Once the intending immigrant has received labor certification approval, the petition sponsored by the employer and advanced on the worker’s behalf can be filed.
What is Labor Certification and Who Needs It?
Labor certification, sometimes abbreviated as LC, is different in process and purpose from the similarly named labor condition application (LCA). While the labor certification process is intended for permanent immigrants, labor conditional approval is reserved for those seeking a temporary H1-B visa. Unfortunately, due to its nature as a gateway to a permanent visa, it is significantly more difficult to satisfy the labor certification process. Labor certification is concerned with ensuring that an intending immigrant will not have negative effects on the U.S. labor market or result in depresses wages and reduced competitiveness for domestic U.S. workers. Labor certification is required for individuals seeking entry for most grounds contained in the second and third immigrant employment-based preferences (EB-2, EB-3). The EB-2 visa preference includes foreign nationals holding exceptional ability in business, arts, education, and athletics. EB-2 also covers intending immigrants holding advanced, professional degrees. EB-3 visa covers foreign nationals holding a bachelor’s degree, skilled workers, and some other non-seasonal workers.
What Is the Labor Certification Process?
The PERM labor certification process is the name for the process an applicant must engage in to receive approval from the U.S. Department of Labor (DoL). The labor certification process is employer-driven. The prospective employer should engage in the following processes on the immigrant’s behalf:
- Request a prevailing wage determination – Before filing the labor certification application, the sponsoring employer is required to request a prevailing wage determination. Determinations are provided by the National Prevailing Wage Center (NPWC). The NPWC will provide information the prevailing wage, wage tracking number, the occupation title & skill level, and the valid dates for the determination. This information must be included in ETA Form 9089 – Application for Permanent Employment Certification.
- Engage in pre-filing recruitment processes – Except for a limited number of “schedule A” occupations, all employers filing a labor certification must engage in a recruitment process and attest that they have done so. Depending on the statute the labor certification is filed under, the employer must engage in recruitment procedures intended for either professional occupations or nonprofessional occupations. The employer is required to prepare a recruitment report. The report should categorize the lawful job-based reasons the employer was unable to find a worker in the U.S. labor pool. The Certifying Officer may choose to request the identities of individual workers who applied or interviewed for the role.
- File an application for labor certification – Once the foregoing steps and others have been completed by the employer, ETA Form 9089 must be completed and filed. The application concerns the job duties, educational requirements, training, and experience required for the position. The application will also set forth the qualifications of the foreign worker.
- Provide information requested by the Certifying Officer – The process does not require or permit an employer to file supporting documentation with Form ETA 9089 at the outset. However, the employer must keep such evidence available and accessible. If the Certifying Officer requests this information, it must be provided.
- Retain records – Employers who file labor certification applications must retain their records, applications, and supporting documents for a minimum of five years.
The labor certification process can be completed via postal mail or electronically. The process and procedure for handling electronic filings and filings by mail differ, but an experienced attorney can provide guidance in both filing methods.
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Following securing labor certification, the employer must then file an immigration petition on behalf of the worker. This petition should be filed via Form I-140. If the I-140 petition is filed the employer will receive a Receipt Notice. If your I-140 is approved, you may then file I-485 to adjust status or register for permanent residence. Forms I-140 and I-485 can also be filed and processed concurrently. To schedule a confidential immigration consultation, call an experienced Miami employment visa attorney of Colombo & Hurd at 800-659-7142 or contact us online. We are dedicated to providing a meticulous and strategic approach to employment-based immigration concerns.