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Employment-Based Alien Labor Certification Overview
Labor certification is usually a prerequisite for obtaining employment-based permanent residence. Labor certification is the determination by the Department of Labor (DOL) that there are no authorized U.S. workers qualified and available for the position for which a labor certification is being sought. In many cases, this position is the same job in which the beneficiary is already employed on a temporary basis (typically pursuant to E, L-1B, H or TN visa status).
There are several factors which must be taken into consideration when filing an individual labor certification. Some of which are briefly discussed below
Regular Processing
The standard process set forth by the DOL is for the employer to file a labor certification application on behalf of an alien, which states the requirements of the job offered to the alien, with the State Employment Agency ("SESA). A recruitment campaign is then supervised by the SESA including advertisement of the job with its requirements in a local newspaper or occupational journal. Thirty days after commencement of this recruitment, the employer submits the recruitment results to the SESA and the application is then forwarded to one of the ten Regional DOL offices with jurisdiction over the case, where a decision is made to grant or deny certification.
The time it takes to obtain certification through this process depends on the region of the country and the state where the application is filed. Currently, most SESA offices take approximately one year to supervise the recruitment process and the Regional DOL takes another year to certify the case, adding up to a total of two years from filing to certification.
Reduction In Recruitment (RIR)
In an effort to streamline the process, the DOL has recently adopted a policy of expediting labor certifications through the RIR program. RIR requires that an employer submit documentation of a pattern of recruitment within the preceding six-month period with the application and eliminates the need to go through the SESA-sponsored recruitment. By bypassing this step in the process, the RIR application and supporting documentation are reviewed by the local SESA, and, if acceptable, immediately forwarded to the DOL for final determination.
RIR-requests are given priority by both the SESA and DOL offices, as a result, these cases are processed much more quickly then cases filed under the regular processing category. In fact in some regions, both the SESA and Regional DOL processing times for regular processing are more than one year behind the processing times given to the RIR category. However, a built in penalty exists if the RIR request is not favorably considered, because the application goes back to the end of the processing line at the SESA for standard processing, meaning that the processing time will be lost.
The requirement for RIR is that the occupation have little or no availability of qualified workers and that the employer demonstrate adequate recruitment of the domestic market through sources normal to the occupation and industry within the previous six months (e.g.) newspaper advertising, job fairs, internet).
In view of the foregoing, the employer should, if at all possible, file all employment-based labor certification applications under the RIR category. However, it has been our experience that the best way to assume speedy processing of labor certifications is for the employer and beneficiary to cooperate and supply the necessary materials to get the labor certification case filed as soon as possible, whether through RIR or the standard process. We advise all beneficiaries and employers to file their case immediately if the employer is wiling to start the process. This will establish the beneficiary's priority date. Filing a labor certification case does not commit the beneficiary to the current employer, as they can still file a labor certification case later with another employer, even through the case is pending with the current employer. It is simply in the beneficiary's best interest to file a labor certification as soon as they are able to do so.
SECOND PREFERENCE (EB2)
The EB2 category is reserved for those individuals holding a Master's degree or higher or for individuals holding a Bachelor's degree and having five years experience in the specialty which was progressive in nature.
If the requirement is for a master's degree, the degree must be in a related field of study in relation to the job the beneficiary is currently or will be performing based on the requirements for the position listed on the Labor Certification application (Form ETA 750, Part A).
If the requirement is for a bachelor's degree and five years of progressive experience in the specialty, the beneficiary must substantiate five years of progressive experience in the specialty. Experience would have had to been gained prior to starting employment with the petitioning employer. The beneficiary would have to document previous, progressive experience by submitting experience letters from previous employers, which document him/her as having a total of five years progressive experience.
Benefits of Filing Under Second Preference
One of the most obvious benefits to filing under second preference, is for those individuals whose country of birth is wait listed for available visas. Countries such as India and China are wait listed due to the high volume of applications and the limited number of visas congress issues each year. For these individuals, the possibility of filing second preference should be discussed, and if he/she meets the requirements, the application should be filed under second preference. However, in some cases, where the beneficiary does not meet the requirements for EB2, EB3 is the only alternative.
THIRD PREFERENCE (EB3)
The EB3 category is reserved for those individuals having the equivalent of a four-year U.S. bachelor degree or for skilled workers having at least two years' specialized training or experience. If a bachelor degree is required, the degree must be in a related field of study in relation to the job the beneficiary is currently or will be performing based on the requirements for the position listed on the Labor Certification application (Form ETA 750, Part A). If the degree is not in a related field of study, then the beneficiary must produce documentation of three years' experience in the specialty to equate his/her degree to a related field of study.
Both the EB2 and EB3 category are reserved for those individuals filing for labor certification under specialty occupations. There are also other preferences for which a labor certification can be filed.
I-140 (PETITION FOR IMMIGRANT WORKER)
After the DOL certifies the application, the employer files an I-140 (Immigrant Petition for Alien Worker) with the Immigration and Naturalization Service (INS) having jurisdiction over the employer's main place of business. The I-140 establishes the beneficiary's priority date and preference of filing (EB2 or EB3) with the INS and does not change the beneficiary's status. Once the I-140 petition is approved, the beneficiary's final immigration processing may begin once his/her priority date becomes current.
Priority Dates
The Priority Date is established when the application for Alien Labor Certification (Step One) is initially filed with the SESA office. The SESA office stamps the application on the day of receipt and this date remains the priority date for the application throughout the entire alien labor certification process.
Visa Cut-Off Date
Visa cut-off dates are issued each month by the U.S. Department of State, and are the Department's means of establishing a waiting list for U.S. permanent residency in those categories where the number of applicants qualified for permanent residence exceeds the annual limit specified by Congress.
- Visa cut-off dates are issued using the following criteria:
- Country of birth
- Preference or "chargeability" (EB2 or EB3)
I-485 (ADJUSTMENT OF STATUS)
Generally, the higher the preference, the more current the priority date in terms of filing for adjustment of status (Form I-485) which is the last step in the Alien Labor Certification Process. Priority dates are only relevant to those individuals whose country of birth is waitlisted for available visas.
Once the beneficiary's priority date becomes current (if applicable) he/she may file his/her I-485 (Application for Adjustment of Status), along with any dependents, through the INS office where the I-140 petition was approved. Once the application is approved, the beneficiary can go to the local INS office having jurisdiction over his/her residence and receive a "permanent residency" passport stamp to complete the adjustment of status process and receive permanent residency.
Alien Labor Certification Checklist
- The following are documents required to be submitted with the Alien Labor Certification Questionnaire:
- Copies of all diplomas/degree certificates
- Copies of all transcripts for each degree/diploma;
- Copy/ies of Certifications / Memberships (if any)
- Copy of Education evaluation
- Copy of resume. Resume should be up-to-date and include exact employment dates, employer names and addresses and current job description;
- Copies of all experience letters obtained from previous employers. Experience letters should be in the format attached to the Alien Labor Certification Questionnaire;
- Copy of birth certificate. This document may be submitted at a later date;
- Copy of marriage certificate, if applicable. This may be submitted at a later date; and
- Copies of all H-1B, TN, L-1 documents filed upon your behalf. For H-1B, also include the LCA, I-129 Form, I-129 Supplement Form and employer sponsoring letter
- Current Salary:
Frequently Asked Questions
