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| SKILLED WORKERS/BASIC DEGREE HOLDERS |
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Skilled Workers/basic degree holders
The third employment preference is for: Skilled workers, professionals holding basic degrees and 'other workers'. There are 40,000 visas available in this category with 10,000 of them reserved for 'unskilled' workers.
'Skilled' worker means an applicant who is capable, at the time of petitioning for this classification, of performing skilled labor (requiring at least two years training or experience) not of a temporary or seasonal nature for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.
'Professional' means a qualified alien who holds at least a United States baccalaureate degree or an equivalent degree and who is a member of the professions.
'Other worker' means a qualified alien who is capable, at the time of petitioning for this classification, of performing unskilled labor (requiring less than two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
All petitions filed in the EB-3 category require a job offer and a labor certification. The requirement of a labor certification is essentially a statement from the Department of Labor that there are no qualified available US workers willing to fill the position offered and has been part of US immigration law since 1965. Before then an immigrant worker could not be excluded unless the Attorney General issued a statement saying that there was no shortage of US workers and that admission of the alien workers would harm the position of US workers. The labor certification applies to all workers in the EB-3 preference category and most workers in the EB-2 category. Aliens in the EB-1 preference are exempt from the requirement.
The question answered by the labor certification is whether there are any "able, willing, qualified, and available" US workers. US workers include citizens, permanent residents, and anyone authorized to work in the US whose work authorization is not tied to a specific employer. In most labor certifications, the qualified US worker need only meet the minimum qualifications for the position. The exceptions are for teachers at colleges and universities and aliens of exceptional ability in the performing arts, in which the US worker must be as qualified as the alien worker.
The process for obtaining permanent residence based on employment is comprised of three phases: the Labor Certification, the visa petition, and the application for permanent residence. The purpose of this memorandum is to describe the three phases and to provide you with information regarding the company's involvement in each phase. Please read this memorandum carefully, note the procedures and requirements, and if you have any questions in regard to any of this information, please do not hesitate to contact this office.
I. Labor Certification (Step 1)
The Labor Certification process is a process to show that the alien employee is not taking a job away from an U.S. worker. An U.S. worker is defined as a citizen of the United States or somebody else who has his/her legal permanent residence (green card).
In short, the questions really revolve around how easy or how hard it is to find somebody to do what you do. This, in turn, depends upon what the job duties are, for you or anybody else who would have this job, and what the 'normal' requirements are for you or anybody else who would take this job.
Please note that when we talk about requirements, they are not optional or preferred requirements. The person must have the requirement as of the date that the Labor Certification is filed, and probably at the date the alien employee is hired by the employer. Thus, experience gained for the same job by the same employer cannot be used as a requirement.
Importantly, the alien employee must be able to actually prove that he/she actually meets the requirements. For example, if a Bachelor's Degree or higher is required for the job, the alien employee must be able to submit a copy of that degree. If previous experience is required for the job, the alien employee must be able to provide a letter from a previous employer showing when the person worked, the title, and the job duties where the person worked.
There have been clients who said, "Oh, sure, I can get that", but then failed to do so for one reason or another. Therefore, one must be positive he/she can obtain the requested letter.
Further, if the U.S. Department of Labor and/or State Employment Service asks, we must be able to justify each and every requirement, that is to show that the job cannot be done unless the requirement is there. The job opportunity must be described without unduly restrictive requirements. Unusual requirements for a job including foreign language requirements will be reviewed very carefully, and an employer must be able to document the business necessity for such a requirement. There is no such thing as 'prefer'. Thus, all requirements should be reviewed very carefully.
Prevailing Wage
The employer, by law, must pay the "prevailing wage" that is determined by the U.S. Department of Labor. Unfortunately, these wages have no bearing to "real world" wages, but the good thing is that the wages do not have to be paid until the application for permanent residence is completely approved (not when the Labor Certification is filed). Therefore, if the present wage does not meet the normal prevailing wage rate that the government says, the employer can agree to pay that wage when the permanent residence is approved at the end of the process.
Please note also that the government says, quite unrealistically, that there are only two wage levels, that being entry level (Level I) and 'everything else' (Level II). Thus, if a job is not entry level, the higher wage will be required to be paid.
Advertising & Recruitment
The employer must advertise in a newspaper or a trade journal in an effort to recruit an U.S. worker. The Reduction in Recruitment method of Labor Certification is the most favored method of recruitment (but cannot be used for some jobs which require little or no experience). If the employer has made attempts to recruit for the position prior to filing the Labor Certification application, Department of Labor regulations will in some cases allow the employer to request a reduction in the ordinary recruitment process. These attempts must have been made within the six months before filing the Labor Certification, and must have been sufficient to adequately test the labor market. The goal is to show a Ôpattern of recruitmentÕ.
A pattern of recruitment means we can show at least two advertisements in newspapers or magazines over the immediate six months before filing. If advertisements have already occurred, we will review them to see if they meet the requirements. If not, we would then run at least two advertisements in the appropriate publication, and then see if there are any resumes sent in as a response to the advertisements, and whether the person meets the requirements listed in the advertisement. The employer is responsible for keeping a record of all applicants, and documenting why they are not available or qualified for the position, if that is the case. Where an applicant is clearly unqualified from his or her resume, then they may be so informed by letter. If they are not clearly unqualified for the position, they must be interviewed to determine qualifications. Importantly, a qualified U.S. worker who wants the job does not have to be hired. However, the Labor Certification will fail.
Decision
After the required time, Forms ETA 750A & B are then filed with the State Employment Service, along with a posting of the notice in the office of the employer, a copy of advertisement, and Results of Recruitment.
The State Employment Office will then review the file. If the state office has any questions, for instance if they question the salary, a notice will be sent which has to be answered. If the state office has no questions, the case is then sent to the Certifying Officer of the U.S. Department of Labor for approval.
II. The Visa Petition (Step 2)
Upon receiving an approved Labor Certification, our office prepares a visa petition, which will be signed by the employer and is submitted to the U.S. Citizenship & Immigration Services along with the Labor Certification papers. At this time, the employer must submit documentation establishing the company's ability to pay the employee's proffered wages. In addition, we will be submitting documentation received from the employee verifying that he or she meets all of the minimum requirements listed in the Labor Certification.
III. Application for Permanent Residence (Step 3)
The last phase of the employer's involvement consists of providing a letter verifying the alien's employment with the company, and, on occasion, a notarized Job Offer form. Although the employer's involvement at this stage is minimal, we will be spending much time assisting the employee in gathering required documentation, such as birth certificates and marriage certificates, etc. to complete this rather involved stage of the process. At the end of this step, the employee will be granted permanent residence.
Conclusion
This memo gives only a brief overview of the rather detailed and complicated process known as Labor Certification. With our assistance, however, the process should be straight-forward for you. We will do everything possible to simplify your tasks and minimize the amount of time spent by employees at the company on this matter, and we will provide expert assistance at every juncture. Of course, we will be happy to answer any questions regarding this matter or any immigration matter which you may have.
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| CONTACT US |
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Richard I. Fleischer & Associates
917 Main Street - Cincinnati, Ohio 45202-1314 USA
Phone: 513.977.4209 - Fax: 513.977.4238
fleischer@immigrate2usa.com
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| Disclaimer |
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Nothing at this site should be construed as legal advise for any individual case or situation. This information is general content only, and should not be relied upon for any specific information.
For specific legal advise consult an experienced immigration attorney.
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