Immigration Through Employment Certifications
- Palma R. Yanni, Esq.
This memorandum is not intended to provide legal advice on individual cases, each of which presents specific problems. Rather, it is intended as an overview of the general process, and the steps necessary for an employer to sponsor the immigration of an alien worker. Due to the complexities of the immigration process, it is recommended that you seek specific advice from an experienced immigration attorney.
An offer of employment in the U.S. may open the door to permanent residence provided the immigrant will not replace an American worker. The "Labor Certification" process is designed to insure that this does not occur.
Application for Permanent Employment Certification
On March 28, 2005, new regulations governing labor certifications became effective. The new system, called PERM, differs significantly from the old process. Extensive recruitment must be done for the position for which certification is being sought. The employer must:
Post a notice of the position for 10 business days at the place of employment.
Open a 30-day job order with the State Workforce Agency (SWA)
Place newspaper advertisements on two different Sundays in the newspaper of general circulation for the area of intended employment.
If the position is considered to be "professional" by the Department of Labor (DOL) three additional recruitment steps must be taken. Options include:
Posting on the employers web site
Posting on another job search web site
Recruitment through trade or professional organizations
Contracts with private employment firms
Employee referral programs with incentives
Notices at campus placement offices
Local and Ethnic Newspapers
Radio and Television Advertisements
The employer must offer the employment opportunity at 100% or the prevailing rate of pay for the employment opportunity, in the industry, in the area of intended employment. The DOL, through a state workforce agency (SWA), determines the prevailing wage.
Under the PERM system, the employer does not file all the documents in support of the application with the Department of Labor; rather the Employer fills out a very complicated form and files it either on-line or by mail, and keeps all the supporting documentation, and a copy of the certified application form, on file for 5 years. The Certifying Officer may audit applications either for cause or randomly, so it is crucial that the employer keep fully documented files. Further, The Department of Homeland Security, or Consular Officer in the Department of State, may invalidate an approved labor certification if there is a finding of fraud or misrepresentation related to the application. The Certifying Officer may also revoke the labor certification if he or she finds that certification was not justified.
The day the application is received by the Department of Labor becomes the "priority date" for issuance of an immigrant visa to the PERM beneficiary. The U.S. allows a fixed number of new immigrants each year, and if the annual quota is exceeded, the priority date determines who may immigrate first. In recent years, backlogs have developed in the second preference category for persons born in India and China, and for all individuals in the third and other worker categories. Accordingly, it make take years to immigrate after a PERM is approved. An explanation of the immigrant visa classifications and the current priority dates may be found at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
Immigrant Petition for Alien Worker
After a labor certification is obtained, the sponsor then files an Immigrant Petition for Alien Worker with US Citizenship and Immigration Services (USCIS). This petition requires an approved labor certification, proof that the intending immigrant has all the necessary qualifications for the position, and proof that the sponsoring employer had the ability to pay the prevailing wage offered in the labor certification when the labor certification application was filed. After USCIS approves an Immigrant Petition for Alien Worker, the intending immigrant may be processed for permanent residence either at the United States Consulate where the immigrant normally resides or at the USCIS office having jurisdiction over the immigrant's residence in the U.S. If the priority date for the application is current, the Immigrant Petition for Alien Worker and Application for Adjustment of Status may be filed concurrently. If the immigrant will be processed overseas, the Department of State contacts the intending immigrant, and requests biographic data for all family members. Spouses and unmarried children under the age of 21 may immigrate with the principal applicant.
When the United States Consulate receives the biographic data, and various government checks are satisfactorily completed, the Consulate will send a notice to the immigrant and family members to appear at the Consulate for an interview, and to present formal applications for immigrant visas. Prior to the interview, all prospective immigrants to the United States must undergo physical examinations. The formal application for an immigrant visa elicits information to determine whether an intending immigrant is admissible to the United States. Reasons to find someone inadmissible and to deny the visa include criminal or terrorist activity, drug abuse, communicable disease of public health significance, or communist party membership. Once the Consul issues visas, immigrants must enter the United States within six months.
If the intending immigrant is in the United States in lawful non-immigrant status and has not violated his or her status or been employed without authorization for more than 180 days, he or she may apply for permanent residence at the USCIS. As with consular processing, agency checks are conducted, a medical examination is required, and information is elicited to determine admissibility. A person who has applied for adjustment to permanent residence status may not leave the United States during the processing period without prior permission of the Immigration Service.
Although the complexity of our immigration laws presents hurdles to achieving permanent residence, such residence can be realized through an offer of employment. The intricacies of the law, and the unique factors presented by each applicant, require that immigration cases be evaluated individually by a knowledgeable immigration attorney.
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