LABOR CERTIFICATION


Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. First, employers must seek labor certification through the U.S. Department of Labor (DOL). Once the application is certified (approved), the employer must petition the U.S. Citizenship and Immigration Services (U.S.C.I.S.) for a visa. Once U.S.C.I.S. approves the petition then the Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry.

Below are some of the visas requiring Labor Certifications. The actual process for labor certification varies depending upon the program being used. The foreign labor certification process is the responsibility of the employer, not the employee.

Since employers don’t have neither the time nor the technical expertise in the intricasies of the Labor Certification process they use the services of a qualified immigration attorney with experience in Labor Certifications. The attorney and his staff coordinate the entire process with the employer, employee, Department of Labor, United States Citizenship and Immigration Servises, and the Department of State in order to get the employee to be qualified for entry and to be able to work for the employer in the United States.

H-1B SPECIALTY OCCUPATIONS

The Job Must Meet One Of The Following Criteria To Qualify As A Specialty Occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
  •  The employer normally requires a degree or its equivalent for the position.
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For You To Qualify To Accept A Job Offer In A Specialty Occupation You Must Meet One Of The Following Criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Non-immigrant Worker.

H-2A AGRICULTURAL WORKERS

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals, their spouse, and children (under 21 and unmarried) to the United States to fill temporary agricultural jobs.The maximum period of stay in H-2A classification is 3 years.Family members are not eligible for employment in the United States while in H-4 status.

To Qualify For H-2A Non-Immigrant Classification, The Petitioner Must:

  • Offer a job that is of a temporary or seasonal nature.
  • Demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Generally, submit with the H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor.  (A limited exception to this requirement exists in certain “emergent circumstances.”

The petitioner must apply for and receive a temporary labor certification for H-2A workers with DOL. (U.S. Department of Labor)

H-2B NON-AGRICULTURAL WORKERS

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals, their spouse, and children (under 21 and unmarried) to the United States to fill temporary non-agricultural jobs.The maximum period of stay in

H-2B classification is 3 years. Family members are not eligible for employment in the United States while in H-4 status.

To Qualify For H-2B Non-Immigrant Classification, The Petitioner Must Establish That:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n): one-time occurrence, seasonal need, peak-load need, intermittent need.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL)

EMPLOYMENT-BASED IMMIGRATION: SECOND PREFERENCE EB-2

You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.

Advanced Degree
The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.

Exceptional Ability
You must be able to show exceptional ability in business.  Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in business.”

You Must Meet three (3) Of The Following Criteria:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to  your area of exceptional ability.
  • Letters documenting at least 10 years of full-time experience in your occupation.
  • A license to practice your profession or certification for your profession or occupation.
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
  • Membership in a professional association(s).
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.
  • Other comparable evidence of eligibility is also acceptable.

Note: Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750.

To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker.

Note: Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.  National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.  Those seeking a national interest waiver may self-petition) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

Entrepreneurs can either be petitioned by an employer or seek a National Interest Waiver depending on how much background, expertise, and exceptional ability the entrepreneur can prove and how much their coming to work in the United States will benefit the nation. “The petitioner must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.”The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S.workers or otherwise enhance the welfare of the United States may qualify for an NIW. (National Interest Waiver)

EMPLOYMENT-BASED IMMIGRATION: THIRD PREFERENCE EB-3

You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker.

Skilled Workers:
“Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature.

  • You must be able to demonstrate at least 2 years of job experience or training and you must be performing work for which qualified workers are not available in the United States.

Professionals:
“Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions.

  • You must be able to demonstrate that you possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation.
  • You must be performing work for which qualified workers are not available in the United States
  • Education and experience may not be substituted for a baccalaureate degree.

Unskilled Workers (Other Workers)

The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

  • You must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Note: A labor certification and a permanent, full-time job offer are required for these three categories. While eligibility requirements for the third preference classification are less stringent, you should be aware that a long backlog exists for visas in the “other workers” category. Your employer (petitioner) must file a Form I-140, Petition for Alien Worker. As part of the application process, your employer must be able to demonstrate an ability to pay the offered wage as of your visa priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate an ability to pay your wage.