Green Card: Job Offer/Labor Certification

Updates: Continuing Validity of Form I-140 due to a change in employment. 08/04/03 Memo from William R. Yates /s/ Janis Sposato HQBCIS

Who Needs Labor Certification: The Act requires that labor certifications be obtained for persons immigrating under the 2nd (professionals with advanced degrees and persons with exceptional ability) and 3rd (skilled workers, professionals and other workers) employment-based categories.

Concurrent filing of I-140 and I-485 (July 31, 2002, PDF)

LIFE Act : Adjustment of Status Under Revived Section 245(i)

Foreign Labor Certification Contacts List

Sarah Carroll, ALC Cert. Officer, U.S. Department of Labor, Employment and Training Administration, 230 South Dearborn Street, Room 605, Chicago , IL 60604. Phone Number: (312) 353-1550. Fax Number: (312) 353-1509. E-Mail: CARROLLS@DOLETA.GOV

Lynn Doherty, Director, Department of Employment Security, 401 South State Street, Suite 624, Chicago, IL 60605. Phone Number: (312) 793-9279. FAX: (312) 793-9834.

LABOR CERTIFICATION OFFICE : Robert S. Felton, Illinois Dept. of Employment Security 401 South State Street Chicago, IL 60605 (312) 793-6830 (312) 793-5151 FAX

PREVAILING WAGE SPECIALIST: Mary Glusak, IDES-Alien Certification Unit 7th Floor North 401 South State Street Chicago, IL 60605 (312) 793-5323 (312) 793-5151 FAX

PRIORITY DATE OF INDIVIDUAL APPLICANTS : Employment-Based preference Visas are Subject to Numerical Limitation (Quotas) and will issued to eligible immigrants in the order in which a petition in behalf of each has been filed.

First, Fourth and Fifth Preference. The priority date accorded by these employment-based preference petitions is the date the petition was properly filed at the appropriate office of INS or, in the case of a special immigrant (4th preference), at a U.S. consular office abroad.

Second and Third Preference:

(A) The priority date accorded by an employment-based second or third preference petition based upon an individual labor certification is the date on which the labor certification was accepted for processing by an employment service office in the Department of Labor. The priority date in a case which either does not require an employer or meets the labor certification requirement under Schedule A or the Department of Labor's Pilot Program is the date on which the petition was properly filed with INS. [See also 9 FAM 42.53 N3.5 .]

(B) Petitions do not have to be from the same petitioner or be for the same type of employment. However, where the applicant is no longer proceeeding to work for the first petitioner, the consular officer may make inquiries to determine whether the first petition had been revoked.

Quota Bulletien This bulletin summarizes the availability of immigrant numbers. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. United States Department of State, Bureau of Consular Affairs VISA BULLETIN, IMMIGRANT NUMBERS.

Priority Dates: Because certain aliens are subject to quota restrictions, the law provides for an orderly waiting list based on the date that the first official step was taken to immigrate the alien. For family based applicants, this is the date the INS first accepted the immigrant preference petition filed on the alien's behalf. For employment based applicants, this date is the earlier of the date a labor certification was filed on the alien's behalf, or the date an immigrant preference petition was filed, if no labor certification is required. This date is known as the alien's priority date. A priority date is not "perfected" until the immigrant preference petition is actually approved. Once a preference petition beneficiary receives a priority date, he or she may be able to retain it even if the preference classification changes. For example, employment based immigrants are entitled to retain their EB priority dates even if they change jobs or move switch classifications. Similarly, family based beneficiaries are allowed to retain their priority dates if they automatically convert from one classification to another though marriage, age, or the naturalization of the petitioner.

I. OBTAIN AN APPROVED ALIEN EMPLOYMENT CERTIFICATION

Most unskilled workers, skilled workers and professional workers need to obtain a labor certification before applying for a green card. Exceptions exist for: (1) persons in shortage occupations (registered nurses, physical therapists, sheep herders and those demonstrating "exceptional ability" in business, science or arts) as defined by the Department of Labor; and (2) persons demonstrating to the U.S. Immigration and Naturalization Service (INS) that they possess extraordinary ability, are multinational executives or managers, or persons whose work is deemed in the "national interest." Persons holding such positions, which are considered unique and therefore do not displace American workers, may apply directly to the INS for a green card. Some outstanding university and college teachers and researchers in tenure-track jobs may avoid labor certification. Other college teachers and researchers may benefit from a fast-track form of labor certification called "special handling."

Aliens applying for permanent resident status under the Advanced Degree (Non-National Interest Waiver) and Skilled Worker categories must first obtain an approved alien employment certification from the U.S. Department of Labor (DOL). The DOL must certify that, (1) based upon the Employer's efforts to recruit resident workers, there is a shortage of qualified, available, able and willing persons for the job opportunity; and (2) that approval of the application will not have an adverse impact on the wages and working conditions of workers who are similarly situated.

The first form is the job offer which provides detailed information concerning the job opportunity including the job site location; the job title; salary; description of the job duties to be performed; the minimum requirements for the position in terms of education, training and experience; and specialized requirements (i.e., software programming languages, engineering design layout tools, biotechnology processes, etc.).

The second form is the Statement of Qualifications which details the alien's education and practical working experience. This form is supplemented by documentation confirming that the alien meets the minimum and specialized requirements of the job opportunity, such as a current resume, degrees, diplomas, transcripts of coursework, reference letters from former Employers, etc

The state DOL confirms that the wage offered for the position is the "prevailing wage" and informs the employer whether the salary must be increased to satisfy prevailing wage requirements. The state DOL then okays an advertising strategy and sends the application to the local DOL. At the local DOL office, the job is listed as "open" in the state computerized job bank, and the employer is instructed to place an ad in a specified journal or newspaper. The ad will ask applicants for the position to apply directly to the local DOL. The local DOL screens applicants and refers seemingly qualified applicants to the employer. The employer must promptly interview all seemingly qualified applicants. The employer must also consider and interview if necessary any other applicants who, through the job bank listing or pure chance, apply for the position. The employer then files a recruitment report with the local DOL explaining why the ad placement was appropriate, who applied for the job, if any, and why these people were not qualified. Determination of Prevailing Wage

The act requires that labor certifications be obtained for persons immigrating under the 2nd (professionals with advanced degrees and persons with exceptional ability) and 3rd (skilled workers, professionals and other workers) employment-based categories. However, the act provides that no labor certification will be valid unless, at the time of filing the application, the employer has provided notice of the filing (1) to the bargaining representative of the employees in the occupational classification and area for which aliens are sought, or (2) if there is no such bargaining representative, to employees employed at the facility through posting in conspicuous locations.

Any person is permitted to submit to the Department of Labor documentary evidence bearing on or challenging the statements made in an application for certification on file with the Secretary of Labor. This evidence may include such items as information on available workers, information on wages and working conditions, and information on the employer's failure to meet terms and conditions with respect to the employment of alien workers and co-workers.

Time frames required to obtain a labor certification can range from several months to two years, depending on the location of the job. Labor departments in New York, California and Illinois are particularly backlogged.

II. FILE APPROVED CERTIFICATION WITH THE INS

Employment-Based preference Visas are Subject to Numerical Limitation (Quotas) and will issued to eligible immigrants in the order in which a petition in behalf of each has been filed.

First, Fourth and Fifth Preference: The priority date accorded by these employment-based preference petitions is the date the petition was properly filed at the appropriate office of INS or, in the case of a special immigrant ( 4th preference), at a U.S. consular office abroad.

Second and Third Preference:

(A) The priority date accorded by an employment-based second or third preference petition based upon an individual labor certification is the date on which the labor certification was accepted for processing by an employment service office in the Department of Labor. The priority date in a case which either does not require an employer or meets the labor certification requirement under Schedule A or the Department of Labor's Pilot Program is the date on which the petition was properly filed with INS. [See also 9 FAM 42.53 N3.5 .]

(B) Petitions do not have to be from the same petitioner or be for the same type of employment. However, where the applicant is no longer proceeeding to work for the first petitioner, the consular officer may make inquiries to determine whether the first petition had been revoked.

Quota Bulletien This bulletin summarizes the availability of immigrant numbers. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. United States Department of State, Bureau of Consular Affairs VISA BULLETIN, IMMIGRANT NUMBERS.

.

Employment Based immigrant visa petition categories: (1) Priority Workers; (2) Immigrants with Advanced Degrees; (3) Professional/Skilled and Unskilled Workers; (4) Special Immigrants; and (5) Employment Creation Immigrants) which receive a total of 140,000 visas per fiscal year. There has not been much concern over the quota bulletin and visa availability except for those countries with particularly heavy demands (i.e., People's Republic of China, India and the Philippines).

(1) Priority workers (28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused special immigrant and investor visas, if any) Priority workers include (A) persons of extraordinary ability, (B) outstanding professors and researchers, and (C) certain executives and managers of multinational corporations. A person's extraordinary ability in the arts, sciences, business, education, or athletics must be demonstrated by sustained national or international acclaim, and his achievements must have been recognized in his field through extensive documentation. He must be entering the U.S. to continue work in his area of extraordinary ability, and his entry must substantially benefit prospectively the U.S. Aliens applying for employment-based first preference are not subject to a job offer, and therefore do not require labor certification. The priority date accorded by an employment-based first preference petition is the date the petition is properly filed with INS

42.32(a) First Preference - Priority Workers To qualify as an outstanding professor or researcher, a person must (1) be recognized internationally as outstanding in a specific academic area; (2) have at least three years of teaching or research in the academic area; and (3) seek to enter the U.S. for (a) a tenured or tenure-track position within a university or other institute of higher education to teach in the academic area; (b) a comparable position with a university or other institute of higher education to conduct research in the area; or (c) a comparable position to conduct research in an area with a department, division, or institute or a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field. A multinational executive or manager must have been employed abroad as such during at least one of the three years preceding his application for priority worker classification and admission into the U.S. as a priority worker. He must be entering the U.S. to be employed as an executive or manager for the same firm, corporation or legal entity (or to a subsidiary or affiliate thereof) that employed him abroad.

(2) Professionals with advanced degrees and persons of exceptional ability (28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused visas from priority worker category, if any) These visas are reserved for qualified immigrants who are (1) members of the professions holding advanced degrees or their equivalent, or (2) those who are of exceptional ability in the sciences, arts, or business. It is required that such immigrants will substantially benefit prospectively the national economy, cultural or educational interests of the U.S. and that their services are sought by an employer in the U.S. In determining whether a person is of exceptional ability, the possession of a degree or license does not, by itself, constitute sufficient evidence of such ability. Unlike a priority worker, a person may immigrate to the U.S. under this category only after his employer has obtained a labor certification for his job. However, where it is deemed to be in the national interest, the Immigration Service may waive the requirements of a job offer and labor certification. A person holding a bachelor's degree and five years of professional experience will be considered to possess the equivalent of an advanced degree for purposes of this section of law.

Educational and Experience requirements for EB-2, March 20, 2000 INS Memo to Regional Directors (.pdf file)

What is an Advanced Degree? What is the Equivalent of an Advanced Degree? (.pdf file)

42.32(b) Second Preference-Professionals with Advanced Degrees or Persons of Exceptional Ability (.pdf file)

(3) Skilled workers, professionals and other workers (28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused visas from the two preceding categories, if any) A qualified skilled worker is a person capable of performing an occupation which requires at least two years of training or experience, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S. A person is a qualified professional under this category if he holds a baccalaureate degree and is a member of the professions. Other workers are those who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S. Skilled workers, professionals and other workers may immigrate to the U.S. only after their employers obtain labor certifications for their jobs. Unskilled workers are limited to no more than 10,000 visas per year under this category. This limitation has resulted in dramatically increased waiting times for housekeepers and other unskilled workers.

42.32(c) Third Preference-Skilled Workers, Professionals, Other Workers

( 4) Special immigrants (7.1% of the worldwide level of visas, or approximately 10,000 visas) A variety of immigrants in this category include religious ministers, long time employees of the U.S. government employed abroad, certain investors and physicians who have resided in the U.S. for a number of years and many other categories of persons. Prior law did not provide for numerical restrictions upon special immigrants. The act imposed a ceiling of 10,000 visas annually for special immigrants. Two types of special immigrants (immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad, and immigrants who are former U.S. citizens) are exempt from this limitation. The act adds several new categories of special immigrants: (1) religious workers for bona fide, tax-exempt, non-profit religious organizations in the U.S. (5,000 annual numerical limitation), (2) certain employees at the U.S. Consulate in Hong Kong, and (3) certain aliens who have been declared dependents of juvenile courts in the U.S.

The priority date accorded by an employment-based fourth preference petition is the date the petition was properly filed at the appropriate office of INS or, in the case of a special immigrant described in INA 101(a)(27)(D) (an SE applicant), at a U.S. consular office abroad. INS and the Visa Office have agreed, that the spouse and/or child of a special immigrant who immigrated to the United States may be deemed entitled to status derivatively under INA 203(b)(4). No separate petition is required. The applicant shall be accorded as a priority date the date the principal alien was issued the special immigrant visa. If that information is not available, the priority date shall be the date the special immigrant was admitted to the United States. This information is reflected in the principal's passport and/or on the Form I-551 or can be obtained from INS.

42.32(d) Fourth Preference Special Immigrants - Certain U.S. Government Employees

42.32(d)(1) Fourth Preference Special Immigrants-Religious Workers (.pdf file, click on link. You will need Acrobat Reader to view this document. Adobe? Acrobat? Reader? is free, and freely distributable, software that lets you view and print Adobe Portable Document Format (PDF) files. Download Adobe Acrobat Reader

(5) Investors: Persons who create employment for at least ten unrelated persons by investing capital in a new commercial enterprise in the United States. The minimum amount of capital required is normally $1,000,000, depending upon the unemployment rate in the geographic area (10,000). for alien investors in new commercial enterprises. Not exactly a "job offer" preference because qualification is based on the amount of the investment and not on whether a job is offered to the alien (although the alien investor must play an active role in the investment). There are two groups of investors: those who invest in "targeted employment areas" and those who invest anywhere else. The labor certification requirement does not apply to this preference. An investor, as described above, must file a Form I -526 petition with the US INS. The priority date accorded by an employment-based fifth preference petition for an alien entrepreneur is the date the petition was properly filed with the Service. It should be noted that such date may be earlier than October 1, 1991, because INS permitted filing of Form I-526, Immigrant Petition by Alien Entrepreneur, for priority date purposes (although no adjudication could take place) before the effective date of the INS regulations pertaining to this class. [See also 9 FAM 42.32(e) N7 .]

42.32(e) Fifth Preference-Employment-Creation Immigrants

42.33 Diversity Immigrants : Eligibility to compete for consideration 42.33 Notes. Procedural Notes

Could you explain the difference between EB1, EB2 and EB3?

EB-1 can be subdivided into 3 categories: (1) persons of extraordinary ability, (2) outstanding professors and researchers and,(3) multi-national executives and managers. A labor certification is never required for someone who qualifies for EB-1. Persons demonstrating to the U.S. Immigration and Naturalization Service (INS) that they possess extraordinary ability, are multinational executives or managers, or persons whose work is deemed in the "national interest." Persons holding such positions, which are considered unique and therefore do not displace American workers, may apply directly to the INS for a green card. Some outstanding university and college teachers and researchers in tenure-track jobs may avoid labor certification. Other college teachers and researchers may benefit from a fast-track form of labor certification called "special handling."

EB 2 is divided into two subcategories. (1) Persons of exceptional ability and (2) persons with advanced degrees. Persons in the EB2 category are subject to the labor certification requirement unless they qualify for a National Interest Waiver.

Persons in the EB3 category consist of professionals with Bachelor's degrees, skilled workers, and unskilled workers. EB3 workers are almost always subject to the labor certification requirement although some workers in shortage occupations like registered nurses and physical therapists are granted blanket labor certifications. Computer professionals are not included in the list of shortage occupations but may be added in the future.

National Interest Waiver: A National Interest Waiver, or NIW, waives the requirement of a job offer for an individual applying for an employment-based immigrant visa. Typically, it can take a long time to go through the labor certification process. The NIW can cut that time down. You can also apply for the visa without having a sponsor. To qualify: 1. Have an advanced degree professional or exceptional ability; and 2. Be involved in an activity that could benefit the national interest of the USA.

You must prove that your admission will do one of the following: Improve the U.S. economy * Improve working conditions and wages of workers in the USA * Improve training and educational opportunities and programs for unqualified workers and children * Improve health care * Provide more affordable housing * Improve the environment or natural resources * Admission is requested by a government agency. File Form I-140 accompanied by the appropriate documentation for your area with the INS. Advanced Degree Professionals: Must have a bachelor's degree. The INS will not except an equivalency evaluation. You must have a master's degree or equivalent. Five years beyond the bachelor's degree can be determined to be equivalent. Must be exceptional in your field/Exceptional Ability: Have an official academic record showing you have some kind of diploma or degree from an academic institution proving exceptional ability. * Provide letters from current and past employers demonstrating you have at least 10 years of experience in your occupation. * Proof that you have earned compensation which demonstrates exceptional ability. * Proof of membership in professional organizations and associations in your field. * Proof of recognition by your peers, governments or professional organizations. * Have a license to practice in the profession.

INS uses specific criteria to determine your petition: You must have two years of experience in your area. Your petition cannot be based solely on eliminating a labor shortage. Your work will greatly benefit the USA. You must have a significant role in the work being accomplished. Obtaining approval can take anywhere from a few months to years.My LC was filed in Oct. 1998 in EB2 by non- RIR. May I file my second LC by RIR while keeping my previous one? If yes, how? The Labor Department's current position is that an employer may not file more than one labor certification for one individual simultaneously. Therefore, if you wish to file a new labor certification, you must first withdraw the initial application. As a matter of strategy consider and do the six month recruitment required for RIR labor certifications while the initial labor certification submitted by the company remains pending. If the original labor certification is not approved by the end of the six month period,you can withdraw the first labor certification and simultaneously submit the RIR labor certification. Typically, RIR labor certifications are approved in any where from a few weeks to a few months.

CONSULAR PROCESSING

Employment-Based Immigrants, *42.32, FAM: If a petition is approved by INS, the INS adjudicator will indicate the proper priority date in the appropriate box on the face of the petition. The consular officer will assume that the adjudicator has appropriately applied the INS regulation in assigning that date. At the time that the immigrant visa petition is filed, the alien must indicate whether s/he will be processing the application for the visa abroad through a U.S. Consulate or in the U.S. through the INS. If the alien will be processing the visa application through a U.S. Consulate, upon approval of the petition, the INS will notify the National Visa Center (NVC). Once the NVC receives the petition, it will send a Visa Packet III application package to the alien. Packet III consists of a set of forms and instructions of additional documentation that will be required. Upon the Consulate's receipt of the alien's completed forms, it will generate Packet IV and advise the alien of the date/time of his/her immigrant visa interview.

The alien will usually have several weeks advance notice of the appointment. U.S. Consulates may require additional documents that are not required when the alien adjusts status in the U.S. Some of the additional documents can include Police Certificates for each country in which the alien has resided for more than 6 months after reaching the age of 16. In addition, Consular Processing requires actual interviews for all aliens and attorneys are not normally allowed to accompany aliens at the interviews. If something goes wrong at the interview or the Consular Official requests additional information, the alien will be "stuck" outside the U.S. until the issues are resolved. (cannot appeal these decisions)

Consular officers are authorized to grant to an alien the preference status accorded in a petition approved in the alien's behalf upon receipt from INS of the approved petition or official notification of its approval. The status shall be granted for the period authorized by law or regulation. The approval of a petition by INS does not relieve the alien of the burden of establishing to the satisfaction of the consular officer that the alien is eligible in all respects to receive a visa.The consular officer may not issue a visa to an alien as an employment-based preference immigrant entitled to status under INA 203(b)(1) - (5), unless the officer has received a petition filed and approved in accordance with INA 204 or official notification of such filing and approval

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