The Green Card Through Labor Certification
A U.S. employer can sponsor a foreign national for a green card provided that they test the U.S. labor market and are unable to find a qualified U.S. worker. This begins with labor certification through the U.S. Department of Labor. The labor certification process itself does not grant an immigration status, however, it is the most expedient way for most foreign nationals to obtain permanent residence through an offer of employment.
The foreign national does not have to be present in the United States during this process, nor does it matter whether the foreign national is working for the U.S. employer during the labor certification process. The job offered is a future offer depending on the results of the labor market test. However, to initiate this process, there must be a bona fide offer of future employment that the foreign national will intend to fill once they receive permanent residence.
The process for obtaining permanent residence through labor certification is composed of three phases: 1) the labor certification (test of the US labor market); 2) the immigrant visa petition (ability to pay and foreign national credentials); and finally, 3) the application for permanent residence through adjustment of status, if present in the USA, or Consular processing if abroad.
The three phases of this process are broken down as follows:
PHASE 1: Labor Certification (MUST BE PAID FOR BY THE EMPLOYER)
The first step involved in the process of sponsoring a foreign national for legal permanent residence is to obtain a labor certification from the Department of Labor (DOL). This is the Employer’s process and the Employee may not be involved! This process tests the labor market to determine whether there is a qualified U.S. worker to fill the position. If there isn’t a qualified U.S. worker, then the position may be filled by the foreign national and used as the basis for a green card.
The employer, together with their legal counsel must first identify and evaluate the job requirements and job duties. DOL will ultimately be making a decision as to whether there is a shortage of U.S. workers and whether the recruitment was properly conducted. Once the job is defined by the employer, a prevailing wage determination must be obtained from DOL. The DOL will tell the employer what the wage rate must be for the position. Once the prevailing wage has been obtained, the recruitment phase of the process begins.
Under the PERM (Electronic Labor Certification) regulations, there are two categories of recruitment:
- Professional
- Non-professional
If the position being offered is a “professional position,” an employer must place two Sunday newspaper ads, a job order with the State Employment Department, and select three other recruitment efforts out of a list of ten:
- Job fair;
- Employer’s website;
- Job search website other than the employer’s;
- On-campus recruiting;
- Trade or professional organization;
- Private employment firm;
- Employee referral program with incentives;
- Campus placement office;
- Local and ethnic newspaper;
- Radio and television advertisement
If the position is not considered professional (generally where there is no degree requirement) the three additional recruitment steps may be skipped.
The employer will have to review résumés which come in response to the recruitment efforts and provide bona fide job-related reasons for disqualifying any applicant who does not meet the minimum requirements before the employer (or its attorney/agent) can submit the application online. Applicants may be rejected outright where their resumes clearly demonstrate ineligibility as often that is the case.
Once under review by the DOL, there may be an interim step called an “audit” where DOL requests recruitment results and/or additional information about the job being offered. DOL might thereafter deny the application or require supervised recruitment depending on the contents of the response. Having an attorney who can spot the issues up front can help to minimize the risk of an audit or denial. Common problems or issues include those related to the prevailing wage, experience gained on the job, education level/licenses required, and even simple clerical errors on the form submitted. It is essential that the foreign national demonstrate that they meet the minimum requirements as they are advertised and stated in the PERM application.
If certified, the “labor certification” is valid for 180 days. During this 180 day period the Immigrant visa petition (I-140) must be filed.
PHASE 2: The Immigrant Visa Petition (MAY BE PAID FOR BY THE FOREIGN NATIONAL)
Upon receiving an approved labor certification (valid for 180 days), the employer must file an immigrant visa petition, which will be signed by the employer and submitted to U.S. Citizenship and Immigration Services along with the approved labor certification, evidence that the foreign national has the qualifications for the position offered and documentation establishing the company’s ability to pay the foreign national’s proffered wages. Ability to pay must be demonstrated for the period of time beginning with the submission of the labor certification up until the foreign national obtains permanent residence. Planning is the key to success. The ability to pay to should be a consideration before the labor certification process even begins.
Ability to Pay
U.S. Citizenship and Immigration Services regulations require that any employment-based immigrant petition that involves an offer of employment must be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage.
Acceptable documentation consists of the following:
- If the Company Employs 100 Workers or More: A statement from the financial officer that establishes the employer’s ability to pay the proffered wages may be sufficient.
- If the Company Employs Fewer Than 100 Workers: The employer must submit one of the following items:
- Annual Report
- Federal Tax Return; or
- Audited Financial Statement
- In appropriate cases, the following additional evidence may be submitted:
- Profit/Loss Statements;
- Bank Account Records; or
- Personnel Records reflecting foreign national is already receiving payment
(Smaller companies find that submitting a copy of their federal tax return that reflects a net income that meets or exceeds the wage is the easiest way to meet the “ability to pay” requirement.)
Employment-based petitions cannot be approved without “ability to pay” documentation. These documents must show that the employer’s revenue is sufficient to support the salary offered.
PHASE THREE: Application For Permanent Residence (MAY BE PAID FOR BY THE FOREIGN NATIONAL)
This is the last phase of the immigration process through labor certification. The employer’s involvement in this phase is limited to verifying the ongoing offer of employment and ability to pay which is usually accomplished by a letter. This final application process is to ensure that the foreign national and their family are admissible to the USA. In some cases they may be inadmissible but a waiver may be available for a specific ground of inadmissibility or may fall under an exception.
For example, if an applicant (or their spouse or child) had shoplifted an item of a small value in the past, that would fall under a “petty offense” exception.
Some of the grounds of inadmissibility that would require a waiver include:
Crimes involving moral turpitude; Previous deportation; Misrepresentation in a prior visa application. Waivers require a showing of extreme hardship to a qualifying resident or US citizen family member.
If the foreign worker is in the USA, they must maintain a valid status at least until they reach the Phase Three of this process. Often, the foreign worker is already employed on a non-immigrant work visa such as the H-1b visa. However, that is not required.
Adjustment of Status v. Consular Processing
- Adjustment of Status (green card processing in the USA)
An approved visa petition may be followed by an Adjustment of Status application for an applicant in the United States if the applicant is in lawful status and otherwise eligible to adjust. This application is submitted to U.S. Citizenship and Immigration Services along with the approved visa petition once a visa is available. The adjustment of status application may be filed concurrently with the visa petition for certain visa classifications where the visa is available. - Consular Processing (green card processing abroad at the US consulate)
If the applicant is not in the United States or is not eligible to adjust status but are otherwise admissible, then they will have to apply for their visa at the US consulate in their home country to obtain permanent residency. Some applicants who are eligible to adjust may also avail themselves of consular processing for various reasons including faster processing. Once the I-140 petition is approved and a visa becomes available or is close to becoming available, the National Visa Center (NVC) will notify the foreign national to file the appropriate forms and make required payments. After the visa application is reviewed and all supporting documentation received, the NVC will forward to the US consulate and a visa appointment will be scheduled at the consulate to attend an interview. If deemed admissible to the USA, permanent residency will be approved. Keep in mind that you will not receive your green card until you arrive in the United States.
CAVEAT: There are 3/10 year bars that may apply if you depart the USA after having accrued unlawful presence. If you have been out of status, you should obtain counsel to evaluate the effect of your departure on your eligibility for residence.
In a nutshell, this 3 step process is the most common way for a U.S. employer to help their foreign workers obtain permanent residence in the United States. Please contact us with any further questions or for legal representation in this or any other immigration matter.
Contact Our Labor Certification Attorneys In Orlando
Immigration attorneys Suzanne Vazquez and Maud Poudat are Board Certified as experts in Immigration Law by the Florida Bar and have decades of experience with the Labor Certification Process. There are several considerations and nuances that are beyond the scope of this explanation. Those will be explored in depth if we become your attorneys. Call us today at (407) 674-6968 and we will be glad to help you. You may also fill the online form provided in this page and we will get back to you within 24 hours Monday to Friday. We look forward to becoming your trusted counsel and helping you navigate this system.