Employment-based immigration, Labor Certification Lawyer, H1B, E1/E2 Visa Law Firm: Law Offices of Prashanthi Reddy

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Employer Immigrant Visas

Thank you for contacting our office regarding permanent residence. The process for obtaining permanent residence on employment is comprised of three phases: the labor certification, the visa petition, and the application for permanent residence. The purpose of this memorandum is to describe the three phases and to provide you with information regarding your part in each of them.

Please read this memorandum carefully, note the requirements, and if you have any questions in regard to any of this information, please do not hesitate to contact our office.

Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. Employment-based immigration is limited by statute to 140,000 persons per year. The process is three fold: a) The employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL); b) the employer applies for immigrant visa classification under the employment-based second or third preference; and c) the foreign national applies for lawful permanent residency or the “green card” through adjustment of status in the United States or consular processing overseas.

I. LABOR CERTIFICATION

In most cases the employer must obtain “labor certification” from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. The employer should have also offered the position at the normal or prevailing wage.

The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered. Nor can the requirements be tailored to the foreign worker’s specific skills and qualifications.

A test of the labor market is generally done through newspaper/website/journal advertisements and requesting the DOL to place a job order. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.

A labor certification is only a first step in the permanent resident process to obtain the “green card.” It is a lengthy process and does not give authorization for a foreign national to remain or work in the United States unless he or she is in another nonimmigrant visa status that authorizes work, such as an H-1B visa. In some regions, the process could take more than two years.

a.	Are There Any Other Ways To Expedite Process? Physical therapists and professional nurses have been exempted from rigorous labor certification requirements. Labor certifications for college and university teachers and performing artists can also be expedited through a process known as a “Special Handling.”
b.	Can Labor Certification Be Avoided Altogether? Labor Certification is only required for individuals applying under the employment-based second and third preference categories (see below).
	Individuals who qualify under the Employment-based first preference do not require a labor certification. The three categories under the first preference are: (I) Persons of Extraordinary Ability, (ii) Outstanding Professors and Researchers; and (iii) Multinationals Executives or Managers.

(i) Persons of Extraordinary Ability

An individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. No job offer is required.

Evidence to demonstrate “sustained or international acclaim” could be a one-time achievement such as a major international aware (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

1.	Receipt of lesser nationally or internationally recognized prizes or awards.
2.	Membership in an association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.
3.	Published material about the person in professional or major trade publications or other major media.
4.	Participation as a judge of the work of others.
5.	Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
6.	Authorship of scholarly articles in the field.
7.	Artistic exhibitions or showcases.
8.	Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
9.	High salary or remuneration in relation to others in the field.
10.	Commercial success in the performing arts.

(ii) Outstanding Professors and Researchers

An individual must establish that he or she is an outstanding professor/researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field.

This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities and the department, division or institution has achieved documented accomplishments in an academic field.

Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:

1.	Receipt of major prizes or awards for outstanding achievements.
2.	Membership in an association which requires outstanding achievement.
3.	Published material in professional publications written by others about the applicant’s work.
4.	Evidence of the person’s participation as a judge of the work of others.
5.	Evidence of original scientific research.
6.	Authorship of scholarly books or articles in the field.

(iii) Multinationals Executives and Managers

An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch or affiliate of a foreign corporation. The alien must further establish that he or she worked in a managerial or executive capacity for one year prior to his or her entry into the U.S. in the parent, subsidiary, branch or affiliate of the U.S. entity.

(iv) National Interest Waivers

The time consuming labor certification procedure may be avoided altogether even under the second preference if the foreign national can establish that the “job offer” requirement should be waived in the national interest. The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest.

In a recent decision of the Administrative Appeals Office of the Immigration and Naturalization Service (In Re New York State Department of Transportation, I&N Dec.3363, Int. Dec. 3363), a three-prong test was established:

1.	The person must seek employment in an area of substantial intrinsic merit;
2.	The person must demonstrate that the proposed benefit will be national in scope; and
3.	The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary, i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process.

SUMMARY OF THE PERM REGULATION

When is PERM effective?
Effective date: March 28, 2005

How long will the labor certification take under PERM?
According to regulations they will take 30-60 days, unless the case is audited, then it might take longer.

Is regular processing faster or PERM?
Regular cases are being sent to the backlog reduction office, again we don’t know how long cases will take to be processed under the back log reduction program, the DOL has informed us that they aspire to reduce all backlogs within 12 quarters, lets wait and see..

Prevailing wage Vs offered wage
According to the Consolidation Appropriation Act. The prevailing wage offer has to be 100% that of the prevailing wage, the 5% deductions is no longer allowed.

What changes have taken place with reference to the determination of prevailing wage?
Under the present system the Government wage survey had only 2 levels (junior level and senior level) under PERM 4 levels can be used for each job position (i.e. they have added on 2 intermediate levels, this allows more flexibility with reference to the prevailing wage).

Is there a change in determining the minimum qualification required for the job? How does this effect the EB-2/EB-3 classification?
Yes there is a change under PERM. The classifications were decided according to the Dictionary of Occupational Titles earlier. For example under the DOT a Software Engineer would qualify for EB-2 position and the priority dates would be current. However, under the new system another database called the O*Net will be used and under that database, many occupation that previously qualified for EB-2 category will now qualify under EB-3. The consequence of this is that a lot more cases will have to be filed under EB-3.

What Pre-Filing recruitment steps have to be taken?
NOJ has to be posted (this is the same as the present process)
In house media posting (this is a new requirement under PERM)
Job order has to be placed with the State Work Force Agency.

What are the advertisement requirements?
2 Sunday adv: In cases where professional journal may be appropriate, one of the Sunday adv can be re-placed with the journal.
3 additional recruitment steps will be required for professional positions: One of them can be done less than 30 days from the date of filing, the other 2 have to be done between 30 and 180. Contact the office for more information on this.

How should the recruitment report be prepared?
Under the present law the recruitment report should contain each applicants name, date contacted and reasons for rejection, under PERM we don’t need to include name of applicants, resumes don’t have to be sent to the labor department. However, upon audit the labor department may require this information.

Can a pending case be converted to PERM?
Yes this can be done. Conversion can be requested before the job order has been placed on the original case. The case will then be processed according to the date that the conversion was requested. Conversion can only be done if the job requirements are identical and the previous petition is withdrawn.

When asking for a conversion, one has to be careful that the job requirements are the same. The labor department will decide if the case qualifies for a conversion or not, if the labor department refuses to convert the case, they will assign a new priority date. This will be a loss for the applicant (especially for applicants falling under EB-3 category and for applicants who are completing 6 years on their H-1b and require the labor to be pending for at least 1 year to get the 7th year extension). A better option would be to keep the old case as-is and re-file a new case under PERM without asking for a conversion, this way we may not need to withdraw the old case. Again contact the office for a better understanding of this.

What is an Audit?
The labor department may ask for additional information by sending an audit letter. This letter can be sent for various reasons. For example, if labor market conditions show that applicants are available, or because of other reasons such as questions about employer existence, size of the company etc. If the officer is not satisfied with the information submitted, the officer will deny the case, and the officer might send instructions to that particular employer, to conduct supervised recruitment for the next 2 years on ALL cases that are filed by that employer.

Can an approved labor certification be revoked?
If the grant of the labor certification was not justified, then the labor certification can be revoked. This does not have a time limit (maybe 5 years, as the labor dept does not maintain records for more than 5 years). Under the old law, the labor certification can only be revoked if there is some finding of fraud or misrepresentation. Under PERM the grant of labor cert can be revoked if it was not “justified”. We don’t know what the term justified means. It seems to have a broader connotation than the existing law.

Is there a fee for PERM?
As of now, no fee for PERM. However we have an indication that this might change soon.

II. IMMIGRANT VISA PETITION

(I-140)
The approved labor certification is filed with the U.S. Citizenship and Immigration Services (USCIS) along with other paper work to determine whether the foreign national qualifies for one of the following categories of sponsorship:

a. Employment-based second preference –
members of the professions with advanced degrees or the equivalent or aliens of exceptional ability in the sciences, arts or business;

b. Employment-based third preference –
professionals, skilled workers (jobs requiring two years or more training or experience) or unskilled workers (jobs requiring less than two years training or experience).

If there is a backlog, it usually takes many more years to immigrate under the third preference unskilled category. Strategies to avoid the third preference unskilled classification whenever possible are imperative.

At this point of time, both the second and third preference categories are current.

III. APPLYING FOR ADJUSTMENT OF STATUS OR CONSULAR PROCESSING

(I-485)
a. Adjustment of Status
If the foreign worker is within the United States, he or she may apply for adjustment of status by filing an application with the INS in the U.S. The individual’s priority date, established at the time of filing the initial application for labor certification with DOL, should be current at the time of filing this application. The application can remain pending for several months before the INS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” However, “advance parole” is not required for people on H-1B or L status.

b. Who Are Eligible For Adjustment Of Status? Adjustment of status is only available to individuals who have always maintained lawful status in the United States. However, those whose labor certifications or immigrant visa petitions were filed prior to April 30, 2001, could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their non-immigrant visas. These individuals would have to pay a penalty fee of $1000. Also, certain employment-based visa applicants could adjust status if they had not been out of nonimmigrant status for more than an aggregate of 180 days, even if the labor certification was filed after April 30, 2001.

c. Portability. A new portability provision was introduced in October 2000. If an adjustment of status application has been pending for more than 180 days, the green card process would not be thwarted if the applicant got an offer from another employer in a similar occupation.

d. Consular Processing
Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must also return to their home country for consular processing. Many opt for consular processing as adjustment of status is more time consuming. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for ten years. There are very limited exemptions for overcoming these bars.

IV. WHAT YOU NEED TO DO TO START THE PROCESS WITH OUR OFFICE

Once you decide to start the process you will receive a questionnaire and list of documents via e-mail. Once the documents have been received by my office, I will call and discuss the case with you. In the course of this discussion we will finalize your job duties and your employment classification, based on your education and experience. I will inform you if we need any further documents. If the documentation is complete and the payments have been made in full, we will file your application within 1 week of receipt of all documentation and payment.

Please note that we offer excellent services as our systems are all automated. You will receive an e-mail whenever there is some change in the status of your case. I am available to respond to any questions that you have. We will send you all correspondence promptly and will respond to all your phone calls and e-mails the same day.

In addition we have a case management system which we have made available to our clients, we will give you a user name and password so that you can check the progress of your case internally within our office. By logging into this system you can find out if we received any correspondence from the concerned labor or immigration officer, you can find out which Para-legal has been assigned to you case, and when the case was filed, you can upload Zip files directly to this system, instead of mailing them to us, you can print your case, or your receipt or approval or any other documents in your file. All files are stored electronically. We have provided this facility to you so that your case may be processed quickly and information is available to you upon demand.

Please do not hesitate to contact me if you have any questions.

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