A “Labor Certification” is a documents issued by the U.S. Department of Labor (US DOL) certifying that a shortage of qualified U.S. workers exists to fill a position, which a US Employer is offering to a foreign national. Certification can only be approved if the US Employer show the position cannot be filed by a qualified American worker. One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. Because this factor is so critical, our office staff spend a significant amount of time obtaining and digesting information and documents on each case and only then assist the US Employer with drafting the appropriate job description.
Effective March 28, 2005 the US Department of Labor is processing Labor Certifications within approximately sixty (60) days, using a new process, referred to as the “PERM”. The “PERM" is a Permanent Electronic Review Management, which is used by the US DOL to review and make decisions on Labor Certification applications. Contrary to the previous Labor Certification filing procedures, the PERM requires the Employer to retain all documents concerning recruitment steps, for a period of five years. In addition, under the PERM, occupations are classified as “professional” or “nonprofessional” and each classification has unique and complex recruitment requirements.
Basic requirements of a proposed position:
a. It must be a full time position;
b. It must be a permanent position (although the employment relationship can be terminated at any time after the foreign national permanent residency is approved);
c. The Job requirements must be reasonable and not unusual unless it can be justified and pass the “Business Necessity Test”. For example, a foreign language can be a reasonable requirement for a Translator position, but may be unreasonable for a Computer Analyst. However, it may be justified if the Computer Analyst duties include the use of a foreign language and its use is necessary for the business
d. The Employer must pay the foreign national the “Prevailing Wages”, which is basically the average salary for the position in the area
After the labor certification application is approved, the alien must next wait for a Visa number and apply for a green card, since green cards under this category are subject to annual quota. The Visa Bulletin indicates the waiting period for a Visa number. The purpose of the visa petition is to prove to the Immigration Service that: (a) the job has been certified by the Department of Labor; (b) the foreign national meet all of the requirements listed on the labor certification; and (c) that the employer has sufficient resources to pay the prevailing wages. This step will also establish the immigrant preference classification (EB-1, EB-2 OR EB-3), which will determine how long it will take to obtain legal permanent residence status (since, as indicated above visa numbers in this category are subject to annual quota and waiting period of several years
During the visa petition phase, it will be necessary to submit documentation from the employer demonstrating its ability to pay your salary, which may include copy of federal tax returns for the past two years. In addition, at this step there is a need to submit documentation regarding proof of the employee education and experience. By the time the Visa petition is filed, it must be determined whether the employee will apply for permanent residency here in the United States, or for an Immigrant Visa at an American Consulate abroad. Most applications for permanent residence are being processed in the United States. There are, however, reasons that may dictate processing through an American Consulate in your home country such as the need for frequent travel abroad, local USCIS time delays or ineligibility for processing in the United States.
H-1B and Labor Certification:
An Employee holding an H-1B status who has a labor certification or a Visa Petition on file (or approved) for 365 days prior to the expiration of the six years may extend their H-1B status beyond the sixth year limit. Such H-1B extensions are issued in one-year increments OR three-year increments if the waiting period for the employee’s country of citizenship is very long.