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Employment-Based Immigrant Visas (Green Cards) - Labor Certification

An individual can also obtain permanent residence through employment.  Generally, to obtain permanent residence based on employment, an individual must first go through a “labor certification” process.  This process requires a specific job offer and a demonstration that no US workers are available to do the job. 

To begin the process, the employer and individual must complete Form ETA‑9089, Application for Permanent Employment Certification.  The first part of the form focuses on the position being offered.  It includes a detailed description of the position, and the educational, professional experience and special skills requirements thereof.  It is important that the information contained in this part be very specific because any applicants for the position will be judged against this information.  However, all requirements listed for the position must be justifiable out of “business necessity.”  Language requirements, for example, are usually suspect and must be fully supported.   In theory, the application should be drafted as if the employee at issue did not exist.  Drafting of the job description and requirements is the most critical part of the process.  It must be accurate, complete and supportable.

The second part of the application details the recruitment efforts the employer undertook to demonstrate that there was no qualified U.S. worker for the position (note that if a qualified applicant responds, the employer is not required to hire him/her.  Rather, it means the sponsored foreign national will not receive a labor certification at that time and will have to attempt the process again).  The system requires two print ads to be placed in a Sunday newspaper of general circulation or a trade journal as well as evidence that a “job order” was placed with the state’s employment office.  Also required are 3 additional forms of recruitment (website postings, employment agencies, campus visits, job fairs, etc.).  An application cannot be filed for at least 30 days after the ads are placed and cannot be filed after more than 180 days after the ads have run.  Any resumes received must be reviewed by the appropriate person at the company to determine if the applicant meets the requirements as advertised.  If an applicant appears to be qualified, the employer will need to conduct a telephone and/or personal interview.  Generally, applicants can only be excluded based on the objective requirements set forth in the application. The fact that the employer "prefers" the sponsored foreign national is not a valid reason to reject an applicant. 

The last part of the form concentrates on the individual and details his or her educational and professional history.  It is critical that the individual have been qualified for the position before being hired in it.  Otherwise, it is plain that the minimum requirements could not be justifiable because the employer hired the foreign national without those qualifications.  It is possible to seek labor certification based on a promotion within the Company to a new job thereby utilizing skills and experience gained within the Company in a lesser job.  However, the new position must be justifiably distinct (the duties of the new position must be “substantially dissimilar” than the duties of the lesser position).   

Once the recruitment has been completed, the application may be electronically filed with the U.S. Department of Labor.  By filing the form, the employer is making a representation that as a result of the recruitment, any US workers who applied for the job opportunity were rejected for lawful job-related reasons.  The employer need not provide specific evidence as to why each applicant was not qualified, but must keep this information available in the event of an audit by the DOL.

Barring an audit or request for additional information, the application should be certified within approximately 6 months’ time.  If the application is audited, the process could take significantly longer.  If the position is ultimately certified, the employer would then file Form I-140, Alien Petition for Immigrant Worker, with USCIS.  If a visa is available, the individual may also apply for permanent residence (an “adjustment of status application”) at the same time OR wait for the I-140 to be approved and complete processing at the U.S. Consulate in his or her home country.

Please contact us or schedule an initial consultation for further information.


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