Employment Based Immigration

Foreigners wanting to immigrate based upon employment must fit into a category of "priority workers", workers with advanced degrees or exceptional ability, or professionals (Bachelor's Degree or the equivalent), skilled workers and others.  Within each of these three main categories, there are sub-groups, all with their own requirements.  Most categories in the employment based system have remained current.  There is typically a backlog for China and India in the second and third preference category. Although there is no backlog for either country presently.

The process to obtain permanent resident status thru employment is entirely different than a non-immigrant visa.  The Labor Certification Process is designed to determine whether or not there are other U.S. citizens or resident aliens that are qualified for the offered employment and who would like to work for the employer.  The process involves advertising for the position as directed by the State Employment office in the state where the employment is being offered.  Following the advertising for the position, the employer must review all applications and determine whether or not any application meets the criteria of the position.  Strict rules are followed regarding the description of the position as set out by the federal Department of Labor.  The employer can reject applicants only for lawful, job-related reasons.  A job description cannot be “tailored” to a given foreigner’s qualifications.  The salary offered must also meet the prevailing wage as determined by the Department of Labor, and must be at least ninety-five percent of what would otherwise be paid to a U.S. worker.

Once the applications are reviewed, the state office would then forward the results to the federal Department of Labor.  The federal Department of Labor would review what has occurred, and then would determine whether or not to issue a labor certification.  Following approval of the labor certification, the employer would then file an Immigrant Visa Petition with the Immigration Service.  Once this has been completed, if the foreigner is within the United States, an application for the “green card” is filed, or, if outside of the United States, the foreign employee would then make application to a U.S. Consulate.  Once the application for the green card is filed, the BCIS will issue work authorization valid until the application is approved.

There are various types of labor certifications for permanent employment, including what is commonly referred to as Reduction in Recruitment (RIR).  This is an excellent means of reducing the processing time in many cases.  In some situations, the RIR procedure can save many months of waiting.  Basically, this involves advertising the position prior to submitting any documents to the state employment office.  Each state has different rules regarding what is an appropriate advertisement and the rules change frequently.

The entire procedure for labor certification is due to be changed in several months. At this time, it is difficult to say with any degree of certainty what effect the changes will have on the results. Please check back here every three months for updates on the changes that are coming.