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Seeking new job opportunities in the United States opens up promising paths for skilled foreign workers through Employment-Based Visas. However, before embarking on this exciting journey, it is essential to understand the crucial role Labor Certification plays in the process.
When individuals dream of working in the United States, employment visas serve as bridges to new opportunities, allowing talented individuals to contribute their skills to the American labor market. From the distinguished EB-1 to the investor EB-5, these visas provide professional options for foreign talents.
Employment-Based Visas provide a pathway for skilled and talented foreign workers to contribute their skills and expertise to the U.S. labor market. These visas are designed to cover a wide range of professional categories and skills, and they are divided into numbered preferences from EB-1 to EB-5
• EB-1: Reserved for those with extraordinary abilities in fields such as: science, art, education, business, and sports, as well as outstanding professors, researchers, and multinational executives.
• EB-2: Encompasses professionals with advanced degrees or exceptional abilities in the arts, sciences, or business.
• EB-3: Intended for professionals, skilled workers, and other qualified employee
• EB-4: Targeted at special immigrants, such as religious workers, U.S. foreign service employees, and other specific cases
• EB-5: Intended for business investors who contribute capital to a new enterprise that generates employment in the country.
Labor Certification: Labor Certification is an essential requirement for some categories of Employment-Based Visas. Before a U.S. employer can file a petition with the United States Citizenship and Immigration Services (USCIS), they must obtain an approved Labor Certification from the U.S. Department of Labor (DOL).
DOL’s Labor Certification has two fundamental objectives:
1. Verify that there are not enough available, qualified, and willing U.S. workers to fill the offered position at the current wage. This ensures that hiring a foreign worker does not negatively impact U.S. workers with similar jobs.
2. Labor Certification ensures that hiring a foreign worker does not harm the wages and working conditions of U.S. workers. This protective measure is established to maintain a fair balance and ensure that foreign employees are not hired as an economic alternative to local workers.
The process of obtaining Labor Certification involves the employer applying to the DOL, which evaluates the labor situation and determines if the required criteria are met. Once Labor Certification is approved, the employer can proceed with the visa petition to the USCIS.
Recruitment Process in the PERM Program:
Once the U.S. employer or company has obtained the Prevailing Wage Determination (PWD), the recruitment process can begin to assess the labor market. It is important to note the following:
• This labor market assessment is conducted to obtain PERM Labor Certification and must follow the rules established by the Department of Labor (DOL).
• This step can take approximately 2 months. If a qualified, willing, and available U.S. worker is found, the process will stop, and it will be necessary to wait at least 6 months before re-evaluating the labor market.
Filing the PERM Labor Certification Application with the DOL:
If the previous step has been completed without finding a qualified and willing U.S. worker, the U.S. employer or company can file the PERM Labor Certification application with the Department of Labor (DOL). They must follow these steps:
1. File the DOL ETA Form 9089 online with the DOL.
2. Wait for the DOL’s response.
3. The processing time for this stage can be approximately 6 months, although it can be extended if the case is selected for an audit.
The employer must file Form I-140, which is the petition for an alien worker, with the United States Citizenship and Immigration Services (USCIS).
This form should only be filed with the USCIS if the PERM Labor Certification approval notice has been received. The Form I-140 filing has a validity period of 180 days from the date of receiving the PERM Labor Certification approval notice.
The processing time is generally 6 to 8 months, but it can be expedited by filing Form I-907, which is a request for premium processing.
Usually, there is no immediately available immigrant visa number, so it is important to stay informed through the Visa Bulletin. If the priority date is current when the Labor Certification is approved, Form I-485, which is the application for permanent residence or adjustment of status, can be filed with the USCIS.
Exceptions: Some categories of employment visas, such as “Extraordinary Ability” visas (EB-1) and investor visas (EB-5), do not require labor certification.
Filing Form I-485:
Form I-485 is filed by the foreign worker to obtain the Green Card. It can be filed along with Form I-140 or after the latter has been approved, provided that the priority date is available.
The worker who will receive the Green Card must meet requirements such as having no criminal record or other factors that make them ineligible to obtain it. The adjustment of status process allows the foreign worker to apply for travel or employment authorization while Form I-485 is pending.
In conclusion, employment visas and Labor Certification are crucial elements for those seeking job opportunities in the United States. These processes not only allow talented foreign workers to contribute to the American economy and society but also ensure the protection of the rights and working conditions of local employees.
At Oasis Legal Group, we understand the importance of these processes and are committed to providing you with the necessary support and guidance in your search for a new opportunity in the United States. Our experienced team will be by your side every step of the way, guiding you and ensuring that you follow the right path towards a successful work life in the United States.
What types of employment visas are available to work in the United States?
Employment visas encompass a variety of categories, from EB-1 to EB-5. Each category has specific requirements and is designed for different types of foreign workers.
What are the differences between the various categories of employment-based visas, such as EB-1, EB-2, and EB-3?
The differences lie in the eligibility requirements and priorities for each category. EB-1 is reserved for those with extraordinary abilities, EB-2 for professionals with advanced degrees or exceptional skills, and EB-3 for professionals, skilled workers, and other qualified employees.
What is labor certification and why is it necessary for some categories of employment visas?
Labor certification is a process in which a U.S. employer demonstrates to the U.S. Department of Labor that there are no available American workers for the offered position and that hiring a foreign worker will not adversely affect American workers.
What role does the U.S. Department of Labor play in the labor certification process?
The Department of Labor reviews the labor certification application to ensure that the requirements are met and that the hiring of the foreign worker will not have a negative impact on the American labor market.
How can I know if I need a labor certification for the employment visa I am applying for?
Generally, a labor certification is needed for visa categories that require a permanent job offer in the United States.
What are the steps to obtain a labor certification through the PERM program?
The steps include the prevailing wage determination, the recruitment process, and the submission of the labor certification application to the Department of Labor.
How long does it take to obtain a labor certification through the PERM program?
The process can take several months, from the prevailing wage determination to the final approval of the labor certification.
What happens after obtaining an approved labor certification?
The employer can proceed with filing the visa petition with the United States Citizenship and Immigration Services (USCIS).
What categories of employment visas do not require labor certification?
Some categories, such as EB-1, EB-2, and EB-5, do not require labor certification.
