Options
General Information
H1B Application
National Interest Waiver
Labor Certification/PR Application
L-1 Visa Application
E-1/E-2 Visa Application
Service Charges
Direction to Our Office
Write to Us
|
Labor Certification/PR Application
Labor Certification
Establishing the Prevailing Wage
Permanent Residence Application Processing
Documents Required for PR Application
Permanent Residence From a Job Offer
The Labor Certification
What is a Labor Certification?
An approved labor certification (LC) is a document issued by the U.S. Department of Labor (DOL) certifying that:
- An employer needs the foreign workers skills and abilities.
- The employer has tried to recruit U.S. workers for the position. The employer must advertise and perform other recruitment efforts to try to find someone who is already an U.S. citizen or permanent resident who is ready, willing and able to fill the open position.
- The employer has offered the position at the normal or prevailing wage.
- The employer has found no qualified U.S. workers. Candidates who respond to the recruitment are presumed to qualify. The employer must convince DOL that they do not. If DOL is not convinced, the labor certification will not be issued and the foreign national will not be able to immigrate to the United States.
The Labor Certification Process
Establish a valid/employee/employer relationship.
- Although the LC process can be done for persons who are outside the US, most LCs are begun for persons in the United States who are already working for an American employer.
Determine the minimum requirements.
- The key to the LC process is to decide what are the true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered.
Determine the prevailing wage.
- The salary offered must be at least the prevailing wage, as determined by DOL.
Conduct recruitment efforts.
- A test of the labor market is usually done through a three-day newspaper advertisement or one advertisement in a national journal or newspaper, and a posting.
Analyze responses.
- Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.
What Happens After Labor Certification Approval?
The approved LC is filed with the U.S. Immigration and Naturalization Service (INS) along with other paperwork to determine whether the foreign national qualifies for one of the following categories of sponsorship:
- Members of the Professions with Advanced Degrees or the equivalent or Aliens of Exceptional Ability in the Sciences, Arts of Businesses (Second Preference).
- Professionals, Skilled Workers (jobs requiring two years or more training or experienced) or Unskilled Workers (jobs requiring less than two yeas training or experience (Third Preference).
It will take many years to immigrate under the Third Preference Unskilled category and about one to two years for persons classified under the Second and remaining Third Preferences. Strategies to avoid the Third Preference Unskilled classification whenever possible are imperative.
How Long is the Labor Certification Valid?
Generally, an approved LC is valid indefinitely for a specific employer, position or job and location. If any of these factors change, the LC may become a useless document.
Common Misunderstandings
An approved LC is proof that there is a shortage of US workers. It is only a first step in the permanent residence process of obtaining the "Green Card."
- It does not give authorization for a foreign national to remain in the United States.
- It does not legalize anyone’s stay in the United States.
- It does not grant permission to work.
- It does not guarantee permanent residence.
* This information provided by American Immigration Lawyers Association.
Go to Top
(ETA Part A #12)
In item number 12 of the Offer of Employment, the employer must specify the rate of pay for the position being offered. This rate of pay must meet the standards of the DOL for the prevailing wage for that position among American workers in the area of intended employment. 20 C.F.R. 656.21(b)(3). The prevailing wage determination is required to ensure that employment of the alien does not "adversely affect" the wages of U.S. workers, a finding required by 212(a)(5)(A) of the Act, 8 U.S.C. 1182(a)(5)(A). If the State Labor Department determines that the rate of pay stated in the Offer of Employment is less than the prevailing wage for the occupation in question, it notifies the employer that it must raise the rate of pay to match or exceed the prevailing wage or else risk denial of the labor certification application by the certifying officer at the regional office.
The State Labor Department is mandated to contact a sufficient number of employers to create an adequate sample of salaries for the position offered. This office is then required to calculate the prevailing wage by adding the total wages for all the employers surveyed and dividing this figure by the number of employees included in the survey. Because the prevailing wage is based on a survey that is admittedly imprecise, the employer is permitted to establish a rate of pay that is within 5 percent of the average rate determined through the use of the survey.
If an employer decides to challenge the prevailing wage determination, the burden is on the employer to produce evidence that the prevailing wage established by the DOL is inaccurate. Most commonly, an employer brings forward industry wage surveys conducted by industry associations or groups of which the employer is a member. Alternatively, many large employers maintain their own wage surveys, which they use in establishing their rates of pay for various occupations. The employer is entitled to request from the local office the basis for establishing the prevailing wage, and if that basis is considered inadequate by the employer, the challenge can be made to the prevailing wage determination by putting forward alternative data.
The final authority with regard to the prevailing wage determination is vested, as with all other decisions on the application, with the regional certifying officer of the Federal Labor Department.
After the Alien receives approval from the Labor Department for the Labor Certification Application, the original Labor Certification Application and the immigrant visa petition including supporting materials will be submitted to the Immigration and Naturalization Services (INS) Regional Office having jurisdiction over the intended place of employment. At this time, INS will requires a copy of your company’s most recent income tax return along with their financial documents, such as business bank account statements, to establish that your company had the ability to pay the alien’s offered wages/salary as of the date the Labor Certification Application was filed. 8 CFR § 204.5(g)(2).
Your company must demonstrate that it has the "financial ability to pay the wage offered and that the employee beneficiary meets the minimum requirements to perform the job satisfactorily." Chang v. Thornburgh, 719 F.Supp. 532, 536 (N.D. Tex. 1989). In addition to the company’s income tax return, INS will consider the alien employee’s ability to generate income when determining the employer’s ability to pay the salary. Furthermore, IRS quarterly reports showing the alien was actually paid during the year when labor certification was filed can also be a source of proof of your company’s ability to pay the offered salary. Additionally, INS will consider the employer’s cash reserve in the bank in determining its ability to pay the alien’s proposed wages.
The DOL takes the position that the employer need not begin to pay the alien the prevailing wage until such time as the alien has been admitted to permanent residence. Therefore, it does not check to ascertain whether the employer is currently paying the alien the prevailing wage, as long as the employer affirms that it is prepared to offer the alien that wage and as long as the employer advertises and recruits at the prevailing wage. The INS recently conformed its policy to the DOL review.
Go to Top
A Brief Introduction to Permanent Residence Application Processing:
Aliens applying for an immigrant visa based upon labor certification must be sponsored by an employer that is willing to offer full-time, permanent employment and is also willing to participate in a labor market test according to regulations.
- Conduct recruitment by running an newspaper advertisement for 3 consecutive days as instructed by the local employment service to test the labor market.
- After being satisfied through the recruitment results that there are no qualified, willing and available American workers to accept the job offer, and that employment of the alien will not adversely affect the wages and working conditions of American workers similarly employed, the U.S. Department of Labor will issue Labor Certification.
- File form I-140 with the I.N.S. regional service center.
- Wait for the visa quota to complete the final status adjustment/visa interview process.
The average processing time for your case will be:
- ONE & ONE HALF (1 1/2) years for Professional & Skilled job offers
- OVER EIGHT (8+) years for Unskilled job offers
The Department of Labor only decides whether it can certify the two elements described by the Act. The I.N.S. and the Consular Offices of the Department of State handle issuance of visas and have authority to investigate certain matters relating to labor certification. For example, although labor certification has been granted by DOL, a Consular office may still deny a visa if field investigation subsequent to certification reveals that an alien did not actually have the work experience stated in his or her labor certification application.
Go to Top
Documents Required for Permanent Residence Application
Please provide us the following Information and the ORIGINAL documents:
FOR YOU
- I-94 Card
- Passport
- 3 (three) Photo
- Birth Certificate/Household Record
- Marriage Certificate (with English Translation).
- Job Offer Letter
- Affidavit of Support Information (IF SPOUSE IS NOT WORKING):
- Bank Statement
- Latest W-2 Form
- Since when you have resided in the United States (month/year)
- The reasonable value of other personal property you have besides your savings.
- The value of real estate (if any), Mortgages, and Location of the property.
- Annual Income/Salary
- Fingerprint
- Medical Examination Report
- Information for G-325A
- Husband/Wife - Name, Date of Birth, Date & Place of Marriage
- Former Husband/Wife - Same information
- Applicant’s last address outside of the US of more than one year
- Applicant’s address & employment for last five years.
Go to Top
|