Labor Certification Process
The labor certification is the first in a three
step process to becoming a legal permanent resident that involves both the Department
of Labor (DOL) and USCIS. The law requires that you continue to be employed
by your current employer throughout all three steps of this process for the
granting of legal permanent residency to be valid. If you leave your employer
or make a significant job change with the same employer, the process must be
started all over again.
The law requires that your employer file a labor certification application on
your behalf with the DOL. That application must satisfy the DOL that there are
no minimally qualified U.S. workers who could perform your job, as it existed
when you began your employment with your employer. To satisfy these requirements,
our preparation of the labor certification will focus on 4 areas:
- the skills necessary to perform your job
- how you acquired those skills prior to joining your current employer
- how your employer recruited for your position
- whether there were any qualified applicants for your position
Recruitment Efforts
and Results for your Position
While the DOL looks to your original date of hire for some purposes, it looks
to the date of the filing of the labor certification for others, including the
recruitment requirement. Initially, the DOL does not require that your employer
show recruitment for your position at the time of your initial hire, because
you were hired as an H-1B temporary worker. Now that your employer has decided
to pursue a labor certification for you, the DOL considers that a "real" position
for which U.S. workers should be considered.
Labor certifications can be filed via the "regular" process or the "Reduction
in Recruitment" (RIR) Process. The regular process requires that we submit an
application to the State Employment Services Agency ("SESA") of the DOL and
wait for instructions regarding where and when to place a very specific advertisement
for your position. The DOL then receives the resumes submitted in response to
this ad and forwards them to your employer for review. Your employer then submits
the results of this review to the SESA. If the SESA is satisfied that there
were no available and qualified U.S. workers, then the SESA will forward the
application to the regional office of the DOL for processing
The RIR process allows your employer to avoid having the DOL provide very specific
recruitment instructions. Instead, your employer submits proof of its recruitment
efforts for your position, and the results of those efforts to the SESA at the
same time it files your application. If the SESA is satisfied, it will forward
the application to the regional office for processing.
In order to take advantage of the RIR process , your employer must submit proof
of advertising for your position during the six months prior to filing your
labor certification. This proof must include print ads, internet ads and an
internal posting for 10 business days.
Finally, once recruitment is conducted, your employer will review resumes to
determine if any of them should be reviewed by your manager. BY LAW YOU ARE
NOT PERMITTED TO PARTICIPATE IN THIS PART OF THE PROCESS. If no qualified applicants
are identified, we will file the application with the SESA.
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I-140 IMMIGRANT PETITION
BASED ON LABOR CERTIFICATION
Once your labor certification is approved, your employer must file an I-140
immigrant petition for you with the USCIS. This can be done once the labor certification
is approved, regardless of your country of birth or your level of education
or experience. The USCIS will classify you in the "second" or "third" preference
category. In most cases, if your position requires a Masters Degree or a BS
plus 5 or more years experience of progressive related experience, and you possess
that level of education and/or experience, you will be placed in the 2nd preference
category. If your position requires less than this level of education or experience,
you will be placed in the 3rd preference category. Your preference category,
country of birth and date of filing your labor certification ("priority date")
will determine when you can file your adjustment of status application.
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I-140 OUTSTANDING RESEARCHER/PROFESSOR
- Three Years of Research Experience Prior to the Date of Filing the Petition
- Holding Research Position with Employer
- Evidence that the researcher is recognized internationally as outstanding
in the academic field specified in the petition. Such evidence shall consist
of at least two of the following:
- Documentation of the foreign national's receipt of major prizes
or awards for outstanding achievement in the academic field
- Documentation of the foreign national's membership in associations
in the academic field which require outstanding achievements of their
members
- Published material in professional publications written by others
about the foreign national's work in the academic field
- Evidence of the foreign national's participation, either individually
or on a panel, as the judge of the work of others in the same or an
allied academic field
- Evidence of the foreign national's original scientific or scholarly
research contributions to the academic field
- Evidence of the foreign national's authorship of scholarly books
or articles (in scholarly journals with international circulation) in
the academic field
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