Labor Certification

A certification from the U.S. Dept. of Labor allowing
employers to apply for a green card for foreign
employees.

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Many employment-based visas require that ‘Labor Certification’ be obtained from the Department of Labor (DOL), before applying for a visa and successfully obtaining permission to work. The U.S. government by requiring this process to take place, wants to make sure that the job offer, or immigrants will not adversely affect the U.S. job market or economy. In particular, it assures that there are no U.S. workers, ‘willing, able, qualified, and available to accept the job opportunity in the area of intended employment’, and that ‘employment of the foreign worker would not adversely affect the wages and working conditions of similarly employed US workers’. When DOL ‘certifies’ an application, the employer will be able to apply to the USCIS for a green card for the foreign employee.

VISAS WHICH REQUIRE A LABOR CERTIFICATE

When individuals apply for EB-2 and EB-3 visas, they are required to undergo the labor certification (PERM) process with some limited exceptions. This process typically can be anywhere from six months to two years and can be complex to navigate. Program Electronic Review Management (PERM), is merely the system the DOL utilizes to process applications. These applications may be filed electronically or even by first class mail, and once the DOL receives a completed application, they have a goal of rendering decisions within forty to sixty days.

SECOND PREFERENCE - EB-2 VISA

These are visas for those individuals, ‘with exceptional abilities in the sciences, arts, or business’, and ‘professionals holding university advanced degrees’, who have received an offer of full-time employment, with an employer who is willing to embark on the labor certification process. In general, the EB-2 visa is faster than EB-3, as the standards to obtain such are higher, thus there are fewer Applicants applying for the EB-2. That being said, if the EB-3 process moves faster, an Applicant may always downgrade to EB-3 to take advantage of the reduction in the backlog with the U.S. government.

By far the most appealing feature of the EB-2 is that it offers certain individuals the ability to obtain a waiver, which circumvents the need to obtain DOL certification and enables the Applicant to self-petition, known as a ‘National Interest Waiver’ (NIW).

THIRD PREFERENCE - EB-3 VISA

This visa category is intended for ‘skilled workers, professionals, and unskilled workers’. All of these workers must have an employer petitioner/sponsor them and that the employer must receive labor certification from the DOL.

VISAS WHICH DO NOT REQUIRE A LABOR CERTIFICATE

THE FIRST PREFERENCE - EB-1 VISA

Individuals who are seeking this particular type of visa, may also self-petition, thus no need for an employer.

Individuals may obtain an EB-1 Visa if:

They hold extraordinary ability(s).
They are outstanding researchers or scientists.
They qualify as multinational managers or executives.

THE SECOND PREFERENCE - EB-2 VISA

As previously indicated, individuals who obtain a NIW, do not need an employer/petitioner and can also avoid the labor certification process when applying for an EB-2.

THE FOURTH PREFERENCE - EB-4 VISA

An individual applying under the EB-4 category can avoid the labor certification process, and is mainly for:

Returning lawful residents of the U.S..
Certain persons are entitled to recover their citizenship, and this application is considered as a reacquisition.
Certain religious workers coming to carry on the vocation of a minister of their religious denomination or in some other religious vocation or occupation, along with their dependents.
Certain U.S. Government employees.
Certain employees of the Panama Canal Company or Canal Zone Government, along with their dependents.
Physicians who were licensed in a State and have been practicing medicine in a State since January 9, 1978, who entered the U.S. as an H-1B or J-1 before that date, and who have been continuously present in the U.S. since that date.
Certain officers and employees of international organizations who resided in the United States for a certain amount of time, as well as their spouses, unmarried sons or daughters, and widows or widowers.
Certain immigrants who have served in the U.S. armed forces.
Certain immigrants who want to enter the United States to pursue work as a broadcaster for the International Broadcasting Bureau of the Broadcasting Board of Governors or for a grantee of the Broadcasting Board of Governors, along with their dependents.

THE FIFTH PREFERENCE - EB-5 VISA

Investors and their immediate family members are eligible to apply for permanent residence if they can make the necessary investment in a commercial enterprise in the United States, and plan to create or preserve the permanent full-time jobs for qualified U.S. workers.

The money required for an investment has recently increased and the standard minimum investment is now $1.8 million (from $1 million) to account for inflation. The minimum investment in a Targeted Employment Area (TEA) has increased to $900,000 (from $500,000) to account for inflation, and future increases will also be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every 5 years.

REQUIREMENTS FOR LABOR CERTIFICATION

There are several basic requirements that must be satisfied, prior to embarking on the labor certification/PERM journey and to be successful in such there must be:

Full-Time Employment
The employer must be willing to hire the foreign individual as a full-time employee.
The Employment Must Be Permanent in Nature
The employer must be offering a permanent position, so temporary or seasonal positions do not qualify.
Reasonable Job Requirements
The minimum educational and experience that the employer specifies for the job must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee and the employer must establish that the requirements are not ‘unduly restrictive’, and any uncommon job requirements must be shown to be a ‘business necessity’.
The Salary Must Be Higher of Prevailing Wage Or Actual Wage
The employer must pay at least the ‘prevailing wage’ for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for other similarly qualified/skilled workers.

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Labor Certification