Employers who wish to petition for their foreign-born employees or prospective employees have two options. The first is to file a petition for an immigrant worker, which once approved, allows the employee or prospective employee to obtain an immigrant visa or green card and commence work for the employer. The second option is to file a petition for a temporary worker, which provides the sponsored employee with the ability to begin working earlier due to the lengthy processing time required for an immigrant visa through employment sponsorship.
Petitioning for an immigrant worker is a two-phased process that initially involves filing an application with the Department of Labor. This process is referred to as labor certification and must be conducted in compliance with the rules and regulations governing the Department of Labor's Program Electronic Review Management (PERM) program. In order to obtain labor certification, the employer must demonstrate that there are insufficient available, qualified, and willing U.S. workers to fill the position being offered permanently, on a full-time basis, at the prevailing wage established by the Department of Labor or another qualified wage source. The employer must demonstrate that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The worker shortage is documented by engaging in a recruitment process to test the labor market. The recruitment is initially unsupervised, but subject to audit, and the Department of Labor could request a second, supervised recruitment campaign.
Certain persons are exempt from the labor certification process, which is of great benefit to the employer because the petition processing time is significantly reduced as a result. The following persons can apply for exemption from labor certification: those with extraordinary abilities in the arts, sciences, education, athletics, or business who have attained national or international acclaim and recognition, and those with advanced degrees or exceptional abilities in the sciences, arts, or business, whose immigration to the U.S. would be in the national interest. The Department of Labor also maintains a list of occupations that are in short supply in the U.S., and therefore exempt from labor certification. Those occupations are: physical therapists; professional nurses; persons with exceptional ability in the sciences or arts, including college and university professors; and performing artists.
Prospective employment-based immigrants have another option. If a person’s immigration to the U.S. would be in the national interest, a job offer is not required.
After labor certification is granted for persons and occupations requiring it, the employer moves on to phase two and files an immigrant petition for the foreign-born worker. For persons or occupations not requiring labor certification, the employer skips phase one and files an immigration petition with documentation to establish eligibility for the exemption from the labor certification requirement. When filing the immigrant petition, the employer must provide proof of the ability to pay the required wage for the position offered, whether or not labor certification is required.
The sponsored employee must file for adjustment of status in order to obtain lawful permanent resident status. The application for lawful permanent resident status may be filed simultaneously with the employer petition if a visa is immediately available.
When you hire Minikon Law, LLC to represent you in your employment-based case, we do the following:
- Case assessment to achieve immediate goals and anticipate challenges
- Employer risk assessment regarding immigration law compliance and implications for current petition
- Planning and assessment for future goals and immigration petitions
- Advise on recent changes, if any, that impact the case
Defend your petition before the various government agencies involved, including the Department of Labor, USCIS, Board of Alien Labor Certification, and the Administrative Appeals Office