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1. The labor certification process is prospective
in that it does not necessarily correlate with the job an applicant
currently holds with the sponsoring employer.
2. The salary figure reported in a labor
certification application can be any salary the sponsoring employer
believes to be the "prevailing wage."
3. An employer can rely on any wage survey as
long as it is published.
4. An employer cannot enumerate duties on a labor
certification application that combine two unrelated positions, even
if it is a business preference.
5. A sponsoring employer - an Italian
restaurant - hires a chef with two years' experience as a chef in
another Italian restaurant. The chef then works two years for the
employer, gaining a total of four years' experience. Since there is
potentially a bigger shortage of Italian chefs with four years'
experience than those with two years' experience, is it OK to list
four years' experience as a minimum requirement on the labor
certification application?
6. An employer hires a bookkeeper who speaks both
French and English. The employer would like to penetrate the local
French-speaking market sometime in the future and presently has one or
two clients that speak French as well as English. The sponsoring
employer cannot list the French/English bilingual requirement in the
labor certification application.
7. John Applicant has obtained approval of a
labor certification application filed on his behalf. His sponsoring
company goes out of business and he gets a virtually identical job
with another company. John can transfer the approved labor
certification to his new employer, who is willing to continue with his
green card process.
8. Jane Applicant also has obtained approval of a
labor certification application. Her company
permanently transfers her to another facility across the
country. Since it is the same company and the same job, Jane can
continue with her labor certification application in the new location.
9. In a traditional labor certification
application, a sponsoring employer runs the required three days of
advertisements in the smallest local newspaper in town in order to
show there is a shortage of qualified and available U.S. workers. This
fails to meet the advertising requirement for labor certification.
10. A sponsoring employer receives five resumes
from the EDD in response to the ads it ran. It waits three weeks to
make contact with the five U.S. workers who responded. Since three
weeks is a reasonable amount of time to wait before initiating
communication with a job applicant, this should not be an issue.
11. After an employer reports its recruitment
efforts, the EDD renders the final decision on the application.
12. The DOL currently takes approximately three
years to render a decision on many traditional labor certification
applications.
13. To take advantage of the speedier RIR labor
certification process, an employer reports recruitment efforts dating
back 12 months. They include one print ad in the area's big
newspaper that ran two months before filing, the existence of an
employee referral bonus program, retainer agreements from search
firms, postings on the wall for two months and job orders on several
internet recruitment sites. Evidence from all 12 months will be
considered by the DOL in determining whether a recruitment
"pattern" has been demonstrated.
14. The RIR application filed by the employer in
question No. 13 will fail because there is no evidence of recruitment
in each of the six months preceding the application's filing.
15. Despite the variety of recruitment efforts
pursued by the employer from question No. 13, if the employer does not
run any print ads, a recruitment pattern will not be established.
16. After labor certification is approved, the
applicant can immediately apply for adjustment of status or elect to
process at the U.S. Consulate in his or her home country for green
card status.
17. The employment-based immigrant visa petition
classifies the applicant in one of several categories of priority.
18. India and Taiwan are two countries whose
applicants are currently adversely impacted by long quotas in some
employment-based categories.
19. In demonstrating the sponsoring employer's
ability to pay the prevailing wage, a letter indicating viability from
the CFO of a company with more than 100 U.S. workers will suffice.
20. Workers of "extraordinary ability" and
those qualified in the multinational manager or executive category can
self-sponsor or avoid labor certification altogether. |
