LABOR CERTIFICATION

1. How to get Green Card through a Job Offer?

The first step (which is the crucial step in the success of obtaining the PR) is for your company to apply for an Alien Employment Certification (AEC) on the alien's behalf (The AEC is also called a Labor Certificate). It is a statement by DOL to INS that there are no available U.S. workers to take the permanent job that is offered to the alien.

There are three important elements in the application of the labor certification:

• First, describe the duties of the future permanent position. Please describe the duties completely. List all the major duties. Use initials like VLSI, LSI, CMOS, or PC-DOS if you wish. Do not try to develop a bulky job description.

• Second, describe the education and experience requirements of the position. This is not a description of the alien's education and experience; it is a description of the minimum level of education and experience required by the position. We cannot use an experience requirement which the alien did not have on his first day with this company.


The principal distinction between the labor certification procedure and the normal hiring practices is that, most employers seek the most qualified candidate for the job, not just one who meets the job's minimum requirements. However, the DOL requires that any U.S. job applicants who meets the minimum requirements for the job be considered qualified, and therefore, a U.S. worker who applies for the job and who meets the actual minimum requirements for the job will result in denial of the labor certification. (But you will not be forced to hire such worker.)
 

• Third, describe special requirements. Special requirements are often key to a successful AEC application. Special requirements are kinds of knowledge or experience which the position requires. Be imaginative in suggesting possible other special requirements. These are always in the form of a phrase. For example, "knowledge of C programming language" or "experience with plastic packaging technology for IC fabrication." Please suggest at least five knowledge or experience requirement phrases.


Consult your manager about his or her ideas for special requirements; also review your university transcript of courses, resume, specialized training, university research projects, and experience with other employers for ideas.

It is important that the alien possessed the required qualifications as of the first day with this company. Special requirements must be actual needs for the job duties, i.e. must be "business necessity".

When you provide the above answers, remember that we are going to attempt to persuade DOL that there is a shortage of U.S. workers ready, willing and able to take the permanent job that offered to the alien. We will use the information you provide to complete the AEC application forms which, in turn, will provide the data for the three day advertisement and the in-house posting for applicants and referrals.

Both the ad and the posting must contain the salary being offered (not necessary if used in RIR - Reduction in Recruitment). Respondents to the ad will be referred to the EDD, which will send their resumes to you. The ones who could be qualified will need to be contacted by your company or to schedule an in-person interview with them. If all of the U.S. job applicants are rejected for lawful, job-related reasons, the recruitment is closed (I will help you in the preparation of the recruitment report which shall be signed by the company), and the application will then be sent by the EDD to the DOL for final decision.

Second step, upon the issuance of the labor certificate, we will then prepare for the I-140 Petition for the alien worker and I-485 Application for adjustment of status. Employers need not get much involved except signing Form I-140.
INS requires you to remain a full-time employee of the company filing the AEC application in your behalf for "a reasonable time" following your approval for LPR status.

If you have any questions, pleas feel free to contact me by phone 510-791-0232, fax 510-791-5609 or email tricia@wangslaw.com.

 2. Document Required for a Labor Certification

EMPLOYER DATA
1. Full Name
2. Address, phone & fax number
3. Federal tax ID number
4. State tax ID number
5. Nature of business activity
6. Name & title of official who will sign forms
7. Company letterhead, 10 first pages and 20 second pages.

JOB DATA
1. Job title
2. Job description
3. Basic hours per week
4. Basic pay
5. Minimum qualifications (education and work experience)
6. Other special requirement
7. Title of Alien's immediate supervisor
8. Number of employee Alien supervise

ALIEN DATA
1. Full name
2. Address
3. Phone
4. Date of birth
5. Place of birth
6. Resume
7. Diploma
8. Transcripts
9. Education (school, degree, field of study, mo/yr)
10. Employment history (name & address of employer, job title & duties, mo/yr)
11. Job offer letter
12. Experience/employment certificates or letters from previous employers
13. H-1 approval notice/Employment Authorization card.

3. More Explaination for Labor Certification

 Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. The prospective employer must first obtain a labor certification and approval of a petition.

A.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 worker's 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 a U.S. worker 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.

B.The Labor Certification Process

1. Establish a valid employee/employer relationship

Although the LC process can be done for persons who are outside the United States, most LCs are begun for persons who are already in the
United States working for an American employer.

2. Determine the minimum requirements

The key to the LC process is to decide what the true mini­mum requirements to the position are. The requirements generally must be normal
to the occupation and not more than the worker had when hired into the job offered.

It is highly critical to correctly determine the job title, job descriptions and minimum requirements for the proffered position.  The degree and experience requirement will determine the different visa categories the alien beneficiary will be placed under.

• Members of the Professions with Advanced Degrees of the Equivalent or Liens of Exceptional Ability in the Sciences, Arts or Business (Second Preference).
•  Professionals (jobs requiring a bachelor's degree); Skilled Workers (jobs requiring two years or more training or experience); or Unskilled Workers (jobs requiring less than two years' training or experience)(Third Preference).

Strategies to avoid the Third Preference Unskilled classification whenever possible are imperative.

3. Determine the prevailing wage

The salary offered must be at least 95 percent of the prevailing wage, as determined by DOL.

4. Analyze responses to recruitment

Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.

5. Processing times

Processing times vary from a few months to a few years, depending upon the location of the position.

What Happens After Labor Certification Approval?

Upon approval of LC, the employer will need to file I-140 Immigration Petition for Alien Worker with the U.S. Immigration and Naturalization Service (INS) along with other paperwork including alien?s qualification (diploma, transcripts and work experience verification letter from alien?s prior employers) for the difference visa preference as designed in the original labor certification application.

For 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.

Under legislation passed in October 2000, however, individuals who have petitioned for adjustment of status and whose cases have been pending for 180 days or more may change jobs or employers without affecting the validity of the petition or underlying LC, as long as the new
job is in ?the same or a similar occupational classification? to the job in the original petition and LC.

C. Common Misunderstandings

An approved LC is proof that there is a shortage of U.S. workers. It is only the first step in the permanent residence process (commonly called
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.

D. Types of Permanent Labor Certification Procedures

There are different ways to file a case, and different ways the DOL categorizes a case. All cases are initially filed with the state job service (State Employment Security Agency, or SESA), which monitors recruitment. SESAs assist DOL, which makes the decision to grant or deny a case.

1. Reduction in Recruitment (RIR)
RIR processing can drastically reduce processing times. To qualify, there must be little or no U.S. worker availability for the relevant occupation, the job offer must contain no restrictive requirements, it must be offered at the prevailing wage, and adequate recruitment must have been conducted within the last six months through sources normal to the occupation and industry, including print media ads.

2. Limited review

These are the cases that have no special job requirements or unusual duties, and therefore require only limited review. Applicant availability or wage issues will be flagged by the SESA after recruitment and forwarded to the DOL for minimal review and approval.

3. All other cases

In cases where no recruitment has been conducted prior to the filing, an application is first filed and screened by the SESA, and the employer will be instructed to undertake the recruitment campaign under the supervision of the SESA office at a later date. The recruitment campaign will typically include (1) print ad for 3 consecutive days; (2) in-house job posting and (3) a job order placed by the SESA office with the state job bank.  At the end of the recruitment campaign, the employer must provide with the SESA a written report of the recruitment result.  The SESA then will complete the final processing and forward the application to the DOL for review.   It is normally a lengthy process which can take 3 or 4 years in some cases.