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Labor Certification Processing Made Easy

Understand the labor certification process employers may use to sponsor a foreign worker for eventual permanent residence in the United States.

Labor Certification for Employment-Based Immigration

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

The process involves testing the U.S. labor market, demonstrating that the employer and prospective employee meet the applicable requirements, and completing the required immigration filings.

Preliminary Considerations

Before beginning the labor certification process, several factors must be considered:

  • 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: Test the U.S. Labor Market

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 approval from the Department of Labor (“DOL”).

Required Recruitment
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.

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

  • Job fairs
  • Employer’s website
  • Other job search websites
  • On-campus recruiting
  • Online 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.

Processing Time
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.

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

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Step 2: File the Immigrant Petition

If we receive approval in Step 1, we then file an immigrant petition with 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.

Processing Time
Time: Approximately 1 year.

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Step 3: Apply for Adjustment of Status

At some point, an application for adjustment of status is filed with USCIS (the so-called “green card”).

Due to 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.

Processing Time
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!

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