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EMPLOYMENT BASED

One of the popular ways to obtain permanent residency in the U.S. is obtaining it through an employer.

In short, the employer must prove to the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS) through a several step application process that the employer can not find a qualified U.S. worker for its open job position. Labor Certification (LC) is a necessary preliminary step for the employer to proceed with a permanent resident petition with the USCIS for its foreign employee.

Labor Certification confirms:

  • There is not a sufficient number of U.S. workers who are able, qualified, and willing to accept the job offer in question at the  prevailing wagefor that occupation in the area where the employer intends the foreign worker to take the job; and
  • By employing the foreign worker, neither the wages nor the working conditions of similarly employed U.S. workers will be adversely affected.

A procedure for Labor Certification called PERM became effective on March 28, 2005. Although the LC requirement is derived from one sentence in the Immigration and Nationality Act, the LC procedure established by the DOL to implement the requirement is detailed and cumbersome. 

Under PERM, employers will obtain a Prevailing Wage Determination (PWD) from the applicable State Workforce Agency (SWA) and conduct recruitment for the open position. DOL regulations governing the LC process require that efforts to recruit qualified resident workers be documented as part of the application process. Under PERM regulations, the employer is required to conduct recruitment more than 30 days and less than 180 days prior to filing. If no able, qualified, and willing U.S. workers apply for the position, the employer will complete and submit (online or by mail) a detailed form about the job duties, minimum requirements, wages, recruitment efforts, recruitment results, etc. to one of two DOL PERM processing centers. The DOL processing centers will conduct a quick anti-fraud check (to make sure the employer exists and has employees) and if the application is not selected for audit based on unpublished factors or based on random quality control factors, the DOL will certify the application.

The employer has the option of filing an LC electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed.

After the DOL approves a Labor Certification, the employer must file an associated immigrant petition with U.S. Citizenship and Immigration Services (USCIS) before the Labor Certification’s validity period expires (180 days).

Waiver of the Labor Certification Requirement – National Interest Waiver

Employers may obtain waivers so that they don’t have to fulfill the Labor Certification requirement. This can only be done if the employer is able to prove that hiring the alien will be “in the national interest”, particularly for aliens who are unusually talented or are working in an area of great industrial importance. Employers should consult a qualified immigration attorney before attempting to obtain such a waiver.

 

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