A "labor certification" is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill a job and that the foreign national will be paid the "prevailing wage." 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, an attorney should spend a significant amount of time obtaining and digesting information and then drafting the appropriate paperwork. It is extremely important that the minimum requirements for the job are correctly described as well as explain the reasons why these requirements are necessary. The necessary papers should be drafted by based on information obtained from the employer regarding title, salary, job description, and minimum job requirements.
Step 1: Labor Certification Continued - Testing the Market
Them employer proves that there is a shortage of qualified U.S. workers exists to fill a job by testing the market. Occupations are now classified as "professional" or "nonprofessional" and each classification has different recruitment requirements. Both classifications require two Sunday newspaper ads and a 30-day job posting with the State Workforce Agency (SWA). For professional positions, the employer must comply with at least three out of 10 listed steps: (1) Job fairs; (2) Employer's website; (3) Job search website other than the employer's; (4) On-campus recruiting; (5) Trade or professional organizations; (6) Private employment firms; (7) Employee referral program with incentives; (8) Campus placement offices; (9) Local and ethnic newspapers; and (10) Radio or television advertisements. If the occupation is classified as "professional" as a "profession" and the employer fails to do these additional steps, the labor certification application will be denied.
Step 2: The Immigrant Worker Petition
Upon receiving an approved labor certification, our office prepares a visa petition that is submitted to U.S. Citizenship and Immigration Services (USCIS). The purpose of the visa petition is to prove to the Immigration Service that: (1) your job has been certified by the Department of Labor; (2) you meet all of the requirements listed on the labor certification; and (3) your employer has sufficient resources to pay your salary. This step will also establish the immigrant preference classification. The most common are "second preference" (normally a person with at least a master's level education) or "third preference" (a person with less than a master's level education) immigrant. In some cases, the preference for which you qualify may determine how long it will take to obtain legal permanent residence status. At times, it takes a person with a third preference approval longer to immigrate than a person with a second preference approval.
Step 3: Application for Permanent Residence
The last phase in the process is applying for permanent residence. Again, we will assist in preparing all the forms and ensuring that the supporting documentation is complete. If permanent residence is applied for in the United States, it is called "adjustment of status" processing. If applied for outside the United States, it is called applying for an immigrant visa." The result of either is the same: permanent residence.
At the end of this step, you will be granted permanent residence and issued a "green card." Of course, neither I nor any other competent attorney can guarantee success of any case because of the wide array of factors over which we have no control.