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The Labor Certification Process
by Labor certification is the process through which a U.S. business can sponsor an individual by providing a job offer for a specified job position to the individual. If approved by the U.S. Department of Labor, the individual (if otherwise qualified) can file for permanent residency with the USCIS (formerly INS) for himself/herself and his/her spouse and unmarried children under the age of 21. While the process seems simple, it is not. The process can be time-consuming and involves careful planning from the outset. Unfortunately, cases are not always prepared carefully and both the employer and the proposed individual worker often face problems with their cases at the green card stage which could have been addressed at the time the labor certification was initially filed. Following is a list of 5 commonly asked questions about labor certification cases: 1. What are the basic steps in a labor certification case and how long will it take? A labor certification case can typically take several years from the time of filing the labor certification to the time the green card application is approved by the USCIS. The long delays are because there is such a high volume of these cases filed and the limited number of people working on the cases at the state Employment Security Commission, federal Department of Labor and the USCIS (formerly INS). The exact time usually depends on the state where the case is filed. Under regular processing, the state Employment Security Commission can take up to 2 years simply to review this Form ETA 750. Under a faster process (called Reduction In Recruitment or RIR), the process at the state level can be shortened. Assuming it is a traditional labor certification case (not RIR), once the state Employment security Commission reviews the case, then the employer must advertise the job and report the summary of recruitment (describe how the job was advertised and who responded to the advertisements) to the state Employment Security Commission. This recruitment time takes about 2 months. If the state agrees with your efforts, then the state Employment Security Commission forwards the case to the federal Department of Labor which reviews it and, hopefully, approves the labor certification by placing a stamp on the original Form ETA 750. The Department of Labor can take anywhere from a few months to over a year to approve the labor certification case. With an approved labor certification, the proposed worker can typically file for the green card with the USCIS if otherwise eligible. However, once filed with the USCIS, the green card case typically takes about 3 years to be approved. 2. Am I legal or can I work once a labor certification case is filed? The simple answer is that simply having a labor certification case filed on your behalf does not make you legal and does not, in and of itself, give you legal permission to work. Basically, you remain in the same status that you were in immediately prior to filing the labor certification case. As a result, if you are illegal or out-of-status at the time the case is filed on your behalf, you will stay illegal or out-of-status until the green card case is ultimately approved by the USCIS which could be several years later. 3. When can I legally work based on my labor certification case? An individual cannot work based on an approved labor certification case until the individual receives an Employment Authorization Document (also known as an EAD or work permit).from the USCIS. An individual can file for a work permit at the time the application for permanent resident (Form I-485) is filed with the appropriate USCIS Service Center. After filing for the work permit, it typically can take 3 months to receive the work permit. 4. What are the minimum requirements for the job in a labor certification case? The employer must advertise the job based on the particular state’s requirements. Typically, a state will require 2-3 days of newspaper advertisements. In addition, the employer must post a notice about the job offer at the employer’s place of business. In advertising the job as required for labor certification purposes, the actual, minimum requirements (education, training and prior work experience) for the position must be listed. The key work is “minimum”. The requirements for the job position must be what the employer is requiring at minimum for the job. This is often very different than the experience the employer would like for the employee to have. For example, while an employer may want an employee with a college degree and several ears of work experience, the employee must list the minimum amount of education, training and previous work experience that the employer is requiring. The Department of Labor has guidelines for each job position which tell it what the typical minimum requirements for the job are. If the employer’s minimum requirements for the job position exceed the Department of Labor’s guidelines for the job, then the employer must either reduce its requirements to the level of the Department of Labor or prove why this employer requires more education, training or work experience than the typical requirements for this type of job. Once the minimum requirements for the job are listed accurately, then the proposed employee must be able to clearly document to the Department of Labor and the USCIS that he or she meets the minimum job requirements trough proof of education, training and prior work experience (usually through a different employer since work experience gained with the proposed employer often cannot be used by the proposed employee). 5. What does it mean that the employer must prove it has the “ability to pay” the wage? If the labor certification case is approved, then the employer must prove to the USCIS that it had the ability to pay the salary listed on the labor certification. The ability to pay the salary must be proven for each year beginning with the year in which the labor certification case is initially filed with the State Employment Security Commission. The law requires that the ability to pay be proven based on federal tax returns of financial statements of the employer. If the employer cannot prove the ability to pay the wage, then (even though the labor certification case was approved by the Department of Labor) the case can be denied at the USCIS level. Kristen A. Chang and David J. Long are attorneys in the immigration law firm of Long, Chang & Associates, L.L.P. Ms. Chang and Mr. Long are members of the North Carolina State Bar and the American Immigration Lawyers Association (AILA). They may be reached via telephone at (336) 855-5700 or via e-mail at info@longchangonline.com This article should not be taken as legal advice for any individual case or situation. This information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law. |