Issues, Before, After, And During Labor Visa Certification
Before: The Adversarial Relationship Between Employers and DOL In the Process
The vast majority of employment based immigrants to the United States must have a job offer from a U.S. employer who has tested the job market and obtained certification from the U.S. Department of Labor (DOL) that there are no U.S. workers ready, willing, and minimally qualified to accept the position. The U.S. Department of Labor has jurisdiction over this process, known as “Labor Certification.” The DOL also has a department-wide policy mission to protect employment opportunities for U.S. workers. Therefore, there is both an inherent and legal conflict between the employer seeking certification and the DOL’s overall mission.
During: Perm Labor Certification Overview
A Labor Certification must be obtained in order to file an application for a Green Card.
A Labor Certification is a formal finding by the United States Department of Labor (“DOL”) that there is a job opening which an employer is unable to fill with a United States Citizen or Permanent Resident, and for which the employer is offering the prevailing wage on a permanent and full-time basis. The DOL published new regulations concerning the Labor Certification system that became effective on March 28, 2005. This new system is called Program Electronic Review Management (“PERM”). Under the new system, the employer must file an extensive, newly created application with the DOL attesting not only to the recruitment, but also attesting to having complied with numerous other requirements prior to the filing. A computer system then checks the application to screen for any “red flags.” Those applications that raise red flags or are randomly selected are audited. The following is a summary of the steps necessary to file a Labor Certification application under the new system:
1. Registration—Employers must begin the process by registering an online account with the DOL. This step must be completed by an authorized representative for the employer, and may not be done by the foreign national or the attorney. However, our office will assist employers with the registration process. Once the employer has registered, the employer may authorize the attorney to have a sub-account connected to the employer’s account.
Employers that file multiple Labor Certification applications only need to complete this step once.
Prevailing Wage Determination—When the job description and minimum requirements for the position are finalized, the employer will need to file a Prevailing Wage Determination with the Department of Labor’s National Processing Center (“NPC”). It is important to note that if the foreign national is currently working for the employer in the same position, he or she must have met all of the minimum requirements for the position before starting that employment. The foreign national will need to provide letters from previous employers and/or documentation in order to prove that he or she met all of the minimum requirements before starting to work for the employer. Based on the position, job duties, and minimum requirements, the NPC will issue a Prevailing Wage Determination for the position. This wage is the minimum that the employer may pay the foreign national for the position listed on the Labor Certification application. Our office will assist in developing the job description and requirements, and will file the Prevailing Wage Determination with the NPC.
Recruitment—Prior to filing the application, the employer is required to conduct recruitment using multiple sources (newspaper, Internet, etc.). All advertisements must include the company name, a specific job title or description, and clear instructions on how to apply for the position. Employers must also post an internal notice announcing the filing (including the salary) at the work site and in any in-house media.
After the position has been advertised, the employer must conduct recruitment efforts, which consist of reviewing applications that result from any of the advertising. The employer must keep detailed records of calls from candidates for the position, resumes that are received, interviews with qualified candidates, and the results for all of the above. Upon completion of the recruitment efforts, it will be necessary to write a detailed attestation of the recruitment efforts and results. Our office will assist with the entire recruitment and attestation process.
Preparation of the Application—Upon completion of the recruitment process, we can finalize the actual Labor Certification application and supporting documents. Our office will finalize the form and send it to the employer for review. Along with the form itself, the employer must keep records of all recruitment and attestations in a file on the work site for five years after filing the actual Labor Certification application. Our office will advise employers regarding compliance with these requirements.
Submission—Our office will submit the finalized form electronically to the DOL.
Certification or Audit—If the employer’s case is not red-flagged or randomly selected, the Labor Certification application will be certified by the DOL’s computer system. If the employer’s case is red-flagged or randomly selected, the employer and our office will receive notice that an audit will need to take place. The employer will be notified roughly 30 days before the audit. The audit will consist of a DOL representative requesting the employer’s records and/or physically coming to the employer’s work site to make sure that the employer has complied with all of the requirements listed above. The DOL representative will want to make sure that all of the advertising and recruitment was completed as attested, and that the employer has kept the proper records on file for all Labor Certification applications that were filed under the new system within the last five years.
In order to determine when to begin the Labor Certification process, please keep in mind that the Labor Certification process does not authorize the foreign national to work in the United States. It is a preliminary step that must be completed in order to apply for a Green Card with the Immigration Service. Therefore, it is necessary to ensure that the foreign national can maintain a valid nonimmigrant status during the Labor Certification process, which can potentially be long and is subject to processing delays.
Our office works with every employer to make the six steps as easy as possible, to ensure compliance with the requirements, and to advise and assist the employer through each step of the process. Please feel free to contact us with any questions and to let us know when you are ready to begin the process.
AFTER: WHAT’S NEXT?
Once the Labor Certification is approved, the employer then files an immigrant petition (I-140) with USCIS to show that the foreign national meets all the requirements for the job. If proven, USCIS approves the immigrant petition, thus giving the foreign national the ability to file for lawful permanent residence (Green Card) once the Priority Date is current either through Adjustment of Status in the U.S. or through processing an immigrant visa at his or her home country’s U.S. Embassy. On July 31, 2002, the Immigration Service implemented a long- awaited rule allowing the filing of the immigrant petition (I-140) simultaneously with the Adjustment of Status application (I-485). This system is called concurrent filing. Previously, the I-140 had to have been approved before the I-485 could be submitted, which had been taking several months. The eligibility requirements for and the preparation of the I-140 and the I-485 are the same as before, but the two can now be submitted together. By consolidating the process, employment-based Green Card applicants are able to file I-485 applications much sooner, thereby gaining protection from certain problems that arise due to running out of time in nonimmigrant status. The new system is also great news for spouses and children of I-140 applicants, who can now file their own Green Card applications sooner, enabling them to get work authorization much more quickly. Once either the I-485 is approved or the immigrant visa processing is completed through the U.S. Embassy, the foreign national becomes a Lawful Permanent Resident--Green Card!
CHANGES TO EMPLOYMENT-BASED IMMIGRATION MADE ON OCTOBER 17, 2000 BY THE AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000 (“AC21”)
No More Six and Out
The first major change made to the Green Card process by AC21 relates to the six-year limitation on an individual's H-1B status. Due to the combination of the six-year limitation on H-1B status and the aforementioned delays in the Green Card process, many individuals were faced with the prospect of running out of H-1B status before they could apply for the Green Card. This situation led to the unpalatable choice of leaving the U.S. or remaining in the U.S. without authorization.
AC21 addressed this issue by allowing an individual with a pending Labor Certification or Immigrant Petition to obtain extensions of H-1B status beyond the six-year maximum, if the Labor Certification or Immigrant Petition was filed at least 365 days prior. AC21 also enables an individual with a pending Immigrant Petition to obtain extensions of H-1B status beyond the six- year maximum if the individual is unable to apply for a Green card due to the unavailability of visa numbers. These provisions will allow an individual in these situations to remain in the U.S. legally and with work authorization until they actually receive the Green Card.
Therefore, employers will not have to face the prospect of losing valuable employees they are sponsoring for Green Cards, because the employees exhaust their six years of H-1B status during the Green Card process. Thus, employers will be able to avoid the frustrating experience of sponsoring individuals for Green Cards, knowing all the while that the process will likely never come to fruition.
The second major change made to the Green Card process by AC21 relates to portability for an individual with a pending Green Card Application. Before AC21, upon approval of the Green Card Application, an individual would have to assume the exact position with the sponsoring employer as outlined in the originally filed Labor Certification (probably several years ago by now), irrespective of how long the Green Card process lasted. Thus, many individuals were forced to stay with their sponsoring employer for several years without even being able to be promoted, lest they negate the entire Green Card process. Moreover, individuals who lost their jobs prior to the approval of the Green Card Application due to a company restructuring or downsizing were forced to start the entire Green Card process from the beginning. Conversely, this requirement combined with the processing delays worked to the employer's advantage. Sponsoring individuals for Green Cards was one of the best ways for an employer to ensure the retention of valuable employees.
AC21 addressed this issue by allowing an individual who has had a Green Card Application pending for more than 180 days to switch to a new employer anywhere in the U.S. as long as it is in a similar occupational category to the one filed in the original Labor Certification. This provision will allow individuals to have many of the benefits of having the Green Card, even though the Green Card Application will have not yet been approved. On the other hand, employers will have to change their strategies to account for the possibility that individuals, whom they may have sponsored throughout a long and expensive process, may leave without providing enough of a benefit to the employer to make it worthwhile. Therefore, employers will have to consider new strategies such as employment contracts with individuals prior to Green
Card sponsorship, and/or monetary compensation in the event the individuals use this new Green Card portability provision.
Need legal counsel who is experienced in immigration who can help you obtain a green card? Does your company need help getting labor visa status for your foreign national workers? Contact Savitz Law today!