Employers who want U.S. residency for foreign workers must get a labor certification.
Foreign workers may obtain green cards to come to the United States only if their potential U.S. employer can prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification." (The requirements are much less for foreign workers seeking to enter the U.S. on temporary, nonimmigrant visas, such as H-1Bs and H-2Bs, which are not covered here; for more information,STEP-BY-STEP PROCEDURES FOR LABOR CERTIFICATION
The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.1. EMPLOYER REQUESTS PREVAILING WAGE DETERMINATION
Under the new procedures, the first step is for the employer to approach the state workforce agency (SWA) serving the state where its office is located. The employer must request what's called a "prevailing wage determination" (PWD), which will indicate how much is normally paid to people in jobs equivalent to the one being offered.
Each U.S. state has its own form for making this request. Finding out the prevailing wage is important because the employer must offer the immigrating worker 100% or more of the prevailing wage -- a change from the 95% that was acceptable before the 2005 regulations.2. EMPLOYER RECRUITS IN THE U.S.
Next, the employer can begin recruiting for the job in the United States. (Actually, the employer can start recruiting before this, but must make sure to offer a salary that’s at least as high as the prevailing wage.)
The Department of Labor (DOL) regulations spell out strict rules for recruiting. For example, the employer must announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the DOL regulations.3. EMPLOYER FILES LABOR CERTIFICATION APPLICATION FORM
If, after the recruiting is done, the employer has not found a qualified, willing, available, and able American to take the job, it can submit the labor certification application to the U.S. Department of Labor (DOL). The application involves completing a ten-page DOL form (ETA-9089), available on the DOL website at www.foreignlaborcert.doleta.gov. No supporting documents need to be submitted, though they must be available in case DOL requests them.
The DOL is supposed to make a decision on the labor certification within 45 to 60 days.
NEXT STEPS TOWARD A GREEN CARD
Only after the labor certification is approved can the employer and immigrant proceed forward. First, the employer must file a visa petition on USCIS Form I-140. The visa petition process is described in First Step for Family and Employment Green Cards: The Visa Petition. After the visa petition has been approved, the immigrant must apply for a green card, either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas). For more information, see Applying for a Green Card.EXCEPTIONS TO LABOR CERTIFICATION REQUIREMENT
Employers of workers in the following categories need not file for labor certification before the worker applies for a green card. These exceptions include:
- workers in what is called the "employment first preference" category, including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
- millionaire entrepreneur immigrants ("employment fifth preference")
- religious workers coming as "special immigrants" ("employment fourth preference"), and
- people whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes there is a shortage of such workers.