|
 Although
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:
 PREVAILING WAGE:
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.
COMBINATION OF DUTIES:
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.
EXPERIENCE WITH THE SAME EMPLOYER:
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.
MINIMUM/SPECIAL REQUIREMENTS:
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.
EMPLOYER/JOB SITE SPECIFIC:
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:
EXTRAORDINARY ABILITY ALIENS:
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.
OUTSTANDING RESEARCHERS/PROFESSORS:
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.
MULTI-NATIONAL EXECUTIVES AND MANAGERS:
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.
NATIONAL INTEREST WAIVER:
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. |
