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Obtaining an Alien Labor Certification

Green card holders are non-U.S. citizens who are legally authorized to permanently live and work in the United States. There are a variety of methods through which non-citizens can achieve green card status. The bases for receiving a green card include family connections, political asylum, adoption, and employment. This article will focus on alien labor certification, which is the process through which employment-based green cards are obtained. Employment-based green cards are issued when the applicant has a permanent employment opportunity in the U.S.

Alien Labor Certification

Most aliens who apply for an employment based green card are already working for the company that will sponsor their green card application (typically with H1 or L1 visas). The difficulty in sponsoring employees for green cards is due to the long process and the fact that employers must show that there is a shortage of eligible employees in the United States for that type of position. The process for determining whether there is such a worker shortage is called PERM Labor Certification (referred to simply as "labor certification" in this article).

Labor certification is the first step in obtaining a green card on an employment basis. The certification application is submitted to the Department of Labor ("DOL"). In a nutshell, employers will have to advertise and interview U.S. citizens, be unable to find a suitable candidate, and demonstrate this inability to the DOL before they can hire a foreign citizen through green card sponsorship.

Exemptions

It should be noted that not all employment-based green cards must be accompanied by labor certification for applicant aliens. The U.S. has determined that certain classes of alien employees do not need labor certification (the policy is typically kind to well-educated immigrants). The following are types of employees who are exempt from labor certification:

  • Aliens of extraordinary ability in Business, Sciences, Arts, Education, or Athletics; outstanding professors/researchers; and international executives/managers (e.g., managers or CEOs of multinational companies). This group of employees is known as Employment First Preference.
  • Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business (Employment Second Preference)
  • Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers (Employment Third Preference)
  • "Special" immigrants, such as certain religious workers (Employment Fourth Preference)
  • Wealthy immigrants who will invest $500,000 to $1 million that will create at least 10 full time jobs in the United States (Employment Fifth Preference)

The exemptions above are listed in descending order of preference for receiving green cards, meaning the Employment First Preference group make up a much larger percentage of employment-based green card holders than Fifth Preference.  For those immigrants who don't qualify under an exemption to labor certification, the process they must follow for successful labor certification is discussed below.

Apply with the State

The first step is to file an application with your state's Employment Security Agency (SESA) or State Workforce Agency (SWA). Depending on your state, the name of the agency will differ. The employer must file a Department of Labor Form ETA-750. This form will include information in the job description, such as the qualifications and experience necessary to perform the job. Additionally, the form will describe how the prospective immigrant candidate meets these qualifications.

Next, the SWA will review and approve of your submitted qualifications. Part of this process will be what's called a prevailing wage determination, which is the state investigating the normal rate for equivalent jobs in the U.S. Once this determination is made, the employer will have to pay 100 percent of that rate to the employee.

Recruiting Process

After the state agency reviews your application and makes a wage determination, you will then have to conduct a recruiting process in an attempt to find U.S. citizens who are able to do the listed job. This recruiting process is strictly monitored by the SWA, following DOL regulations. Employers must publicize the job by submitting the job opening on statewide databases and publications such as newspapers and employment bulletins. They must also interview anyone who meets the qualifications listed.

After the appropriate recruiting period, employers will submit the results to the SWA. The SWA will closely examine the results to make sure that all appropriate advertisements ran, all qualifying candidates were interviewed, and if appropriate, job offers were made. The DOL is very serious about hiring U.S. citizens before prospective immigrants, particularly in times of high unemployment. The SWA will evaluate the recruiting process and pass its report on to the DOL.

Results and DOL Approval

If you cannot find a U.S. citizen who is qualified and willing to do the job, and the state agency has approved of your recruiting process, you can submit the labor certification application to the DOL. The application requires completing DOL Form ETA-9089 (PDF). If the DOL determines that the recruiting process was unfair or not done in good faith (e.g., you did not seriously consider a U.S. citizen that was qualified for the position), the DOL may disqualify a labor certification application.

Post Approval Process

After labor certification is approved, the employer files a visa petition (USCIS Form I-140). After this petition is approved, the prospective immigrant employee applies for their green card. For more information on green card applications, see FindLaw's article, Applying for a Green Card.

Need Legal Help Obtaining an Alien Labor Certification?

No two employment situations are exactly the same, and there may be times when you need additional expertise to help you complete the alien labor certification process. Consider contacting a business and commercial law attorney or an immigration lawyer familiar with the process.

FindLaw's Immigration Law for Employers section contains additional related articles.

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