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Byzantine Path To Obtaining A Green Card

The employment-based route to winning permanent resident status  is fraught with challenges

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Mitch WexlerAlthough there are a variety of paths to obtaining permanent resident (green card) status, including through qualifying family relationships, asylum, etc., this article will focus on the more common employment-based routes to achieve this coveted status. 

The most common avenue involves a Byzantine application effort in which a sponsoring employer must prove to the U.S. Department of Labor (DOL) that there is a shortage of qualified and available U.S. workers. In order to adequately demonstrate this dearth of acceptable candidates, the employer must make an effort to recruit qualified people. Unfortunately, the application process has evolved over the years in such a way that it no longer relates to business reality. There is talk of a significant change in this process, but for now it remains the only game in town.

A labor certification application is prospective in nature. It is actually a "job offer" that becomes effective, according to terms and conditions indicated in the application, when the applicant obtains green card status. Many times, the individual is working - legally or illegally - for the employer during this process. 

This "offer of employment" is central to the application. Its critical components include the job title, the job site, a description of duties, the minimum requirements needed to perform the core duties, and the justification as "business necessity" of any "special requirements" or requirements beyond those which are normal and customary to the industry. 

In articulating these components, the following concepts must be kept in mind to prevent running afoul of the odd rules of this application process:


A salary figure must be included in the application - not just any salary the employer sees fit to pay, but one that is in accordance with the salary paid to similarly employed U.S. workers. In California, this magic figure can be obtained by request from the state Employment Development Department (EDD). As an alternative, a prevailing wage garnered from other reliable wage surveys might be accepted. Whether the DOL will accept the alternative survey will depend on the methodology it employs and the date it was taken. The concern normally is that the DOL may declare the wage must be higher than that which the employer -  who is actually competing in the marketplace - knows to be prevailing.


Although there are some exceptions, there is a general prohibition against job descriptions that include two or more distinct occupations. For example, it was held that a small movie theater could not require its bookkeeper on a slow day to also run the projector. The DOL would prefer the employer to hire two people, which will make it more likely that a qualified U.S. worker would be located for the job in question.


Although there are some exceptions, the sponsoring employer is not allowed to consider experience the applicant obtained from the same employer. The rationale here is that such experience is not an actual minimum requirement since the applicant was hired without it.


As mentioned above, only minimum requirements can be stated on a labor certification application. Also, any requirements determined to be "special" must be justified as "business necessity," rather than mere "employer preference." For example, if an application for a software engineer requires one to be bilingual because "some" of the clients speak Spanish, it will be challenged. 


Labor certification applications are both employer and job site specific. For instance, if the applicant obtained approval of her labor certification but not the green card, then she permanently changed jobs, the process would start all over.

Moreover, even if she stayed with the same company but was relocated to another "area of employment" (usually defined in terms of a county, "Metropolitan Statistical Area" [MSA] or normal commuting distance), the process would have to start anew. It is often devastating to start from scratch when an applicant has only a short time remaining on her employment-authorized temporary work visa.

The filing of a labor certification application does not secure one's legal status in the U.S.

The labor certification adjudicative process starts after much of the lawyering has been completed; i.e., after the application is prepared and filed. In California, it is filed with the EDD, which assesses the application according to the factors enumerated above. It then instructs the sponsoring employer to post the job opening in a conspicuous place on its premises for 10 days and to run a classified advertisement in the area's newspaper of general circulation. It will be considered insufficient to advertise in the local PennySaver.

The resumes of interested U.S. workers are sent to the EDD, which in turn sends them to the employer for interviews. The employer must make contact with each U.S. applicant within 14 days and generate a report explaining why each was unqualified and/or unavailable for the job. The EDD file is then transmitted to the DOL for final adjudication.

It is not uncommon for the EDD processing to take a couple of years. The DOL, too, takes approximately three years to render a final decision on these applications. Applications involving occupations with known worker shortages may take less time.

Given this wholly unworkable timeline, the DOL has sought to re-engineer the labor certification process and offer another option, Reduction In Recruitment (RIR), also known as "fast-track labor certification." RIR requires an employer to demonstrate that it has already tested the U.S. labor market for workers during the six months preceding the filing of the application and that there is indeed a shortage. There does not have to be a particular effort in each of the relevant six months, but only search efforts made during those months will be considered in showing the required "pattern" of recruitment.

In California, this pattern cannot be established without at least one print ad. The DOL is a bit behind the technology curve and has not yet accepted the fact that many comprehensive recruitment efforts are internet- and search firm-driven and do not include print ads. Additional recruitment evidence such as career fairs, college campus recruiting and incentive programs - such as offering bonuses to existing employees who refer a new hire - are also quite helpful in establishing the requisite pattern of recruitment.

Visa petition

Once labor certification is approved, the sponsoring employer must file an employment-based immigrant visa petition with the U.S. Immigration & Naturalization Service (INS). This petition seeks to classify the applicant in one of several employment-based categories, such as unskilled workers (for occupations requiring less than two years of experience), skilled workers (two or more years of experience), professionals (requiring at least a four-year bachelor's degree) or for advanced degree professionals (requiring a master's degree or its equivalent). Depending on the applicant's country of birth, being classified in one category over another may save several years on a quota-driven green card waiting list. At this time, applicants born in India and China are experiencing significant backlogs and are most interested in this strategic analysis.

Another critical component of the employment-based immigrant visa petition is the requirement that the employer demonstrate that it has maintained its ability to pay the offered wage. Typically, this is evidenced by tax returns, financial statements and the like. For companies employing more than 100 U.S. workers, a statement of viability from its chief financial officer will suffice.

Last step

The third and final step of the employment-based green card process involves either an adjustment of status or what is known as consular processing. The former is a domestic application that seeks permanent resident status based on the applicant's achieving labor certification approval and appropriate classification by way of the immigrant visa petition.

 The consular option is a similar process except that a final interview is convened at the U.S. Consulate in the applicant's last place of foreign residence. This strategic decision is typically based on ever-fluctuating timelines and travel issues.

Considering the laborious nature of the labor certification process, one would be well-advised to fully explore all employment-based green card options that do not require labor certification. 

Three of the more common ones include:


If one is able to meet a relatively high standard of achievement that places him among the top few percentages in his field of endeavor,  with sustained national or international acclaim, he might be considered of "extraordinary ability" and thereby can avoid the labor certification process. Moreover, an applicant in this category can opt to "self-sponsor" rather than seek sponsorship from a particular employer.


Although this class of applicant needs a sponsoring employer, if she is sufficiently "outstanding" as required by regulation, she can permanently immigrate and bypass the labor certification process.


It is accepted by the INS that if one served as an executive or manager for a qualifying overseas organization (parent, subsidiary, branch or affiliate) for at least one of the last three years prior to entering the United States and will provide similar service in the states, that there is a shortage of such skills here. Obviously, there is a need for a sponsoring employer but no need for labor certification.


The waiver here is in reference to both the job offer (sponsor) and labor certification requirements. If one's services will directly and significantly serve a compelling national interest, this may be a viable non-labor certification option.

As can be seen, it is challenging to obtain green card status using job skills alone. Attaining labor certification is difficult but not impossible. It remains good advice to first determine if the objective can be achieved without having to undergo this painful process. 

Mitch Wexler is a senior partner in the Newport Beach office of HirsonWexlerPerl, a national immigration law firm. He is a specialist in immigration and nationality law, certified by the State Bar of California, and served as vice chair of the bar's Advisory Commission on Immigration & Nationality Law. Wexler also is the current chair of the southern California chapter of the American Immigration Lawyers Association (AILA) and is his chapter's Department of Labor liaison.