Labor Certification

A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. In most instances, the U.S. employer must obtain an approved labor certification request from the DOL’s Employment and Training Administration before submitting an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). The DOL processes Applications for Permanent Employment Certification, ETA Form 9089.

The date the labor certification application is accepted for processing is the filing date and is referred to as the priority date. The priority date is what establishes the foreign national’s place in line for a green card.

Labor Certifications are currently taking about 2-4 months to process if the case is unaudited. If DOL decides to audit the case it can take over two years to adjudicate. An immigration lawyer can discuss with you which items will raise a red flag and trigger an audit. While a properly prepared ETA 9089 form will minimize the chance of an audit there is always the chance of a random audit. After the labor certification application is approved by the DOL, it should be submitted to the appropriate USCIS service center with a From I-140, Immigrant Petition for Alien Worker. At the I-140 stage the employer will verify that they have the ability to pay the Alien Worker, and the Alien Worker will verify they have the skills, education, and experience required on the Labor Certification. You may access the State Department Visa Bulletinto learn which priority dates are currently being processed.

Criteria

  1. The job opportunity must be for a full-time, permanent position.
  2. There must be a bona fide job opening available to U.S. workers.
  3. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
  4. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications.

 

Schedule A Occupations

Certain occupations are exempt from the labor certification process because DOL has determined that there are not sufficient U.S. workers able, willing, qualified and available.  In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed. The occupations listed under Schedule A include:

  1. Physical Therapists – who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
  2. Professional Nurses – the alien (i) has a Commission on Graduates Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
  3. Scientists or Artists (except performing arts) – Aliens of exceptional ability in the sciences or arts (except the performing arts)  including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term “science or art” means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
  4. Performing Artists - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.