Permanent Residence Through Employment

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One means of obtaining permanent residence in the U.S. is through the petition of a U.S. employer. The most common route for an employment-based Permanent Resident petition adds an initial step to the process, and that is the Labor Certification application. The Labor Certification application involves the Department of Labor (DOL). By approving a Labor Certification (LC) request, the Employment and Training Administration (ETA) of the DOL certifies that:

There are no U.S. workers who are able, willing, qualified and available to accept the job, at the prevailing wage for that position and in the geographic location of intended employment, and hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The Labor Certification process requires that your employer test the U.S. labor market for a specific position at the company to see if a qualified, willing, and able U.S. worker is available to fill the position. If a qualified U.S. worker is not found based on the DOL-mandated recruitment steps, the company is able to file the Labor Certification Application (LCA) with the DOL. The DOL’s role is to protect U.S. workers. Before approving the application, the DOL must make sure that the employer’s job requirements are appropriate for the position, that the proper wage is being offered, and that the test recruitment is conducted properly.

During the test recruitment process the employer is not required to hire any qualified applicant. However, the employer must document why an otherwise qualified American worker who applied for the position was not offered the position.

Labor Certification Filing Procedures:

1. Request a Prevailing Wage Determination (PWD) from a State Workforce Agency.
2. Complete all recruitment activities.
3. Complete Form 9098 – Application for Permanent Employment Certification, including detailed job duties and requirements.
4. File the application electronically through DOL’s designated website.
5. Receive a decision from the DOL. If the case is randomly selected for audit, it may take several more months to be certified.‍
   

Your Preference Category Matters.

‍There are essentially three common employment based preference categories: Second Preference, Third Preference, and Other Workers.

Typically, Second Preference employment-based petitions are limited to positions that require, at a minimum a Master’s Degree or equivalent. The benefit of having a Second Preference employment based petition is that it receives priority in immigrating.

Third Preference employment based petitions are reserved for positions that require at a minimum two years of related experience, a Bachelor’s degree, or the equivalent. Most positions will fall under this category.

Other Worker petitions are for jobs that require little experience or education. However, these jobs still qualify for Labor Certification and lawful permanent residence.

Priority Date:

‍The date on which the Labor Certification application is filed with the DOL determines the priority date for immigration. The earlier the priority date, the faster the worker immigrates.

Labor Certification Validity Period:

‍‍Labor Certifications that are approved on or after July 16, 2007 are valid for 180 calendar days. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 immigrant visa petition.

Thousands of foreign workers immigrate to the U.S. yearly under the Labor Certification process. There are literally thousands of different job titles that may qualify for labor certification, from accountant to zoologist. You don’t need to be a professional to qualify. Many foreign skilled workers such as mechanics, cooks, care givers, CNA’s and many others may qualify.

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The Labor Certification process can be tricky and should be supervised by an experienced immigration attorney. Our office has filed thousands of labor certifications with outstanding success. At Sturman & Associates, we are aware of the mandates of the Labor Certification process. We guide employers throughout the process to reduce the burden on busy companies.