Labor Certification Processing Made Easy

Labor certification

The labor certification program allows an employer to “sponsor” a foreign worker for eventual permanent residence in the United States.

PRELIMINARY CONSIDERATIONS

The employer must offer the prospective employee a permanent, full-time position;
The employer must have the ability to pay the prevailing wage and agree to provide income tax returns to prove it;
The prospective employee must have previous experience performing the job duties. Experience gained with the sponsoring employer will usually not count (subject to narrow exceptions);
If the prospective job offer is listed in the newspaper and on the internet, will qualified U. S. workers apply? If there are qualified U.S. workers available, the labor certification application will be denied;
The filing of a labor certification application does not provide employment authorization. Employment authorization is given once an application for Adjustment of Status is filed with the U.S. Citizenship & Immigration Service (“USCIS”) (see below);
If the prospective employee is unlawfully working for the sponsoring employer, there is the potential for USCIS to investigate the employer.

LABOR CERTIFICATION: A THREE-STEP PROCESS

Step 1:

Initially, we are testing the U.S. labor market by placing advertisements for the prospective job. If no qualified applicants respond to our advertisements, we will usually receive an approval from the Department of Labor (“DOL”).

In order to adequately test the labor market, employers are required to:

Place a job order with the State Workforce Agency;
Place advertisements in two Sunday newspapers.
Post the required Department of Labor notice for 10 business days.

Employers of professionals are also required to conduct three additional types of recruitment from the following list of recruiting methods:

Job fairs;
Employer’s web site;
Other job search websites;
On-campus recruiting;
On-line listing provided by newspapers;
Trade or professional organizations;
Recruiting agencies;
Employee referral programs;
Campus placement offices;
Local and ethnic newspapers;
Radio and television advertising.

If we receive qualified responses from U.S. workers, we will not file the application.

Time: According to the DOL, the processing times are estimated to be 3-5 months, maybe longer. If an application is audited, the processing times can exceed 1 year.

For this step of the process, the proposed employee may not pay for any expenses, including attorney fees.

Step 2:

If we receive an approval in Step 1, we then file an immigrant petition with the USCIS. Here, we must prove:

That the employer has the ability to pay the prospective employee’s wage. We will need to provide copies of the employer’s tax return from the date the application was filed with the DOL.
The employee meets the educational and work experience requirements as stated in the proposed job.

Please make sure to obtain letters from prior employers to prove the amount of experience we are requiring. Ideally, the letters should contain as many of the job duties that are listed in the labor certification application.

Time: Approximately 1 year.

Step 3:

At some point, an application for Adjustment of Status is filed with USCIS (the so-called “green card”). Due several factors, there is sometimes a wait before we are able to file Step 3. Please call to discuss your particular situation.

Approximately 90-120 days after filing, the prospective employee will receive employment authorization.

Time: Current processing time is approximately 1 year; however, the prospective employee will have employment authorization throughout most of this period.

If the Adjustment of Status application is approved, you are a Lawful Permanent Resident of the United States!

PERM and the employee referral program

Many people obtain permanent resident status using a process known as PERM. A detailed description of the PERM process may be found here:

https://dalyimmigrationlaw.com/labor-certification/

The PERM process requires that the sponsoring employer conduct a test of the labor market using various sources of recruitment. One source of recruitment that may be used is the employee referral program (“ERP”). In order get credit for using the ERP, the employer must demonstrate a logical nexus between the employer’s referral program and the job opportunity.

In Sanmina-Sci Corp., 2010-PER-00697 (January 19, 2011) the Board of Alien Labor Certification listed three requirements for a qualifying employee referral program:

1. The employee referral program offers specific incentives to employees for referral of candidates;
2. The program was in effect during the recruitment effort;
3. Employees were on notice of the job opening.

An example of specific incentives: Employees receive a $500 referral fee for any person referred as long as the person referred remains in the job for 90 days.

How to prove that the program was in effect during the recruitment period and that the employee were on notice?

Options we have suggested include providing a link where jobs are posted on the employer’s website to the ERP program. Employers who have an internal newsletter can also post the job in the newsletter and provide a link to the ERP program.

Daly Law Office

Labor Certification Processing Made Easy