A QUICK REFERENCE GUIDE ON LABOR CERTIFICATION
by Michael J. Gurfinkel, Esq.

One of the fastest ways to obtain a green card is through a petition by a prospective Employer through a process called Labor Certification. Depending on the state where the case is filed, the process generally takes about 3-1/2 to 4 years. People should consider obtaining green cards through Labor Certification, even those who are currently under petition by relatives, but whose priority dates won't be current in the near future. There is nothing in the immigration laws which prohibits anyone from filing for several different immigration benefits all at the same time, as long as the person is qualified for each benefit (i.e. if you are under a relative petition, you could also file for Labor Certification).

To help our readers determine if they (or their friends or relatives) qualify for the Labor Certification process, we have prepared a Quick Reference Guide on Labor Certification.

What is Labor Certification?

Labor certification is the process by which an alien can obtain a green card through an employer's petition or sponsorship. The alien's spouse and children under 21 years of age will also be able to get a green card at the same time as the applicant does. The employer may even sponsor a person who is outside the U.S.

Once the petition is approved and the visa is issued, the employee can then enter the U.S. and work for the sponsoring employer, and live in the U.S. with his or her spouse and children as green card holders.

What are the requirements to start Labor Certification?

The basic requirements for an employer to sponsor a prospective employee for a green card, are:

EMPLOYER

1. Must be financially stable

* The employer must be able to demonstrate to the INS that, both at the time the Application for Labor Certification was filed, and up to the time of the alien's green card interview, the Employer could afford to pay the "prevailing wage" for the job position. This means that during these periods, the employer must have an income (less operating expenses, such as payroll, rent, supplies, etc.) sufficient to cover the alien's salary.

* The employer need not be a large company. Even a small company, or sole proprietorship, can petition an employee. The employer simply has to demonstrate that it is earning enough money to be able to afford to pay the alien the prevailing wage, and has a future job position requiring the alien's skill or education.

* The employer need not be a US company. However, it must have a location in the U.S. (branch, office, affiliate, etc.), be qualified to do business in the U.S., and the job must be located in the U.S. (meaning the job will be performed in the U.S. branch, and the employee will be paid out of the U.S. payroll).

* The number of years the sponsoring employer has been in business is not of absolute importance. However, the INS needs a "track record" of ability to pay the petitioned alien. So, a newly-started business may find it more difficult to prove ability to pay, and will have to produce documents showing a paid-up capital that would enable it to pay the alien's salary in addition to other projected expenses.

* If the sponsoring employer has petitioned more than one alien employee, its net income at the time of the filing of the labor certification application and during the time of the green card interview of each petitioned employee, must be sufficient to cover the salaries of all petitioned aliens.

2. Must have a "full-time, permanent" job position requiring a college degree or skilled labor (at least two years of training or work experience in order to perform the job duties).

* The job position offered must be "full-time," meaning it requires from 35 to 40 hours of work per week, and "permanent," meaning it does not have a definite termination point. Part-time, or fixed duration jobs, will not qualify.

3. Must be willing to pay the "prevailing wage" for that job position.

* The "prevailing wage" is the average wage paid by employers for a particular job position in the area of intended employment, as determined by the Department of Labor through surveys. The employer must be willing to pay the alien a wage within 5% of the prevailing wage (and for some jobs, the exact prevailing wage).

The employer need not be in the same state where the alien lives at the moment. The employer may be located in the East Coast, West Coast, Hawaii or any other state within the U.S. The employee does not have to immediately work for the sponsoring employer, but must do so once the green card is approved.

SOME EXAMPLES OF QUALIFIED EMPLOYERS:

(There are literally thousands of offices and companies that are qualified to sponsor alien workers. These are just some of them.)

• Hotels & Restaurants

• Board & Care Facilities

• Publishing & Printing Companies

• Accounting Firms

• Marketing Firms

• Schools & Day Care Centers

• Auto & Body Repair Shops

• Hospitals, Medical & Dental Clinics

• Clinical Laboratories

• Dental Laboratories

• Hair & Beauty Salons

• Law & Other Professional Services Firms

• Radio & TV Stations

• Insurance & Other Service Companies

• Architectural & Construction Firms

• Computer Companies

• Art Studios

EMPLOYEE

1. Has a college degree or skill that is related to the employer's job opening.

The job offered must be considered:

-- "Skilled," meaning the job requires a minimum two years training or experience on the particular or related job (if you are being petitioned as a cook, you must already have been employed previously as a cook for at least two years). Training or experience gained from the sponsoring employer ordinarily cannot be counted in determining the alien's experience level, unless the experience was in a "similar", but not exactly related position (i.e. experience gained was as an Assistant Cook, and now being petitioned as Head Chef.) The training or experience should ordinarily be from a different employer to avoid questions. The employee may count experience or training gained outside the U.S. (i.e. in his home country).

-- "Professional," meaning the job requires a college degree related to the job offer. However, it would be helpful if you have both college degree and experience related to your job offer.

* The college degree may have been obtained from a college outside the United States. The alien's transcript will have to be submitted to an accredited academic evaluation agency or body, which will determine whether the college degree obtained from a college outside the US is equivalent to a college degree earned in the U.S.

* Aliens who do not have a college degree, but have some years of college credits and years of experience related to the specific job offered, may still qualify as a "professional", by combining the number of years of college credits and the number of years of actual experience. Generally, three years of work experience equal one year of college. College transcripts and evidence of work experience must be submitted to an accredited academic evaluating agency for accreditation purposes.

* The work experience may be obtained from outside the United States, such as the Philippines, Saudi Arabia, etc.

* The college degree, or the training and experience of the alien must be related to the job offered. If you are being sponsored for an accounting position, you cannot qualify if your bachelor's degree is medical technology or chemical engineering. Similarly, if you have been a medical technologist all your life, you cannot be considered qualified to be a marketing director, even if the employer thinks you would make a good one.

2. The alien must actually work for the employer when they get their green card.

* The INS may investigate whether this was a "job of convenience", or whether there truly is a job opening, etc. You cannot have a friend "sign" the papers as an employer, but in reality, your friend really has no intention of hiring you. Or, you keep working at your existing job, and never really work for the employer. If you don't follow the rules, you risk having your case denied.

TYPES OF JOBS WHICH COULD QUALIFY FOR LABOR CERTIFICATION:

(There are thousands more occupations classified as professional or skilled labor. These are just some of them.)

1. Professionals:

• Accountants & Auditors

• Budget Analysts

• Engineers

• Financial Managers

• General Managers

• Management Analysts

• Marketing, Advertising & Public Relations Managers

• Architects

• Actuaries

• Lawyers

• Chemists

• Geologists

• Dentists

• Economists

• Psychologists

• Priests, Rabbis, Ministers

• Physicians

• Veterinarians

• Editors and Writers

• Optometrists

• Chiropractors

• Teachers

• Librarians

• Counselors

• Hotel Managers

• Health Services Managers

2. Skilled

• Chefs & Cooks

• Dental Assistants

• Medical Assistants

• Barbers & Cosmetologists

• Clinical Lab Technologists

• Farm Operators & Managers

• Aircraft Mechanics

• Auto Mechanics

• Elevator Installers & Repairers

• Farm Equipment Mechanics

• Carpenters

• Administrative Assistants

• Copy Writers

• Architectural Drafters

• Medical Secretaries

• Graphic Designers

• Medical Technologists

• Plumbers

• Engineering Technicians

• Tailors

• Translators

• Tool & Die Makers

• Office Manager

• Bookkeeper

• Illustrators

• Board & Care Facility Manager

• Software Technicians

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