Foreign Workers Visa

Navigating the Labor Certification Process: Foreign Workers Seeking Residence Through Employment

For foreign nationals looking to secure residency in the United States through employment, the labor certification process is an essential step. Employers or prospective employers may petition for a foreign national worker via this process, provided they can demonstrate that no able, willing, and qualified U.S. workers are available for the position. This guide will provide an in-depth overview of the labor certification process and the importance of expert legal guidance when navigating this complex procedure.

Understanding the Labor Certification Process

• Prevailing wage determination: The local Department of Labor will issue a prevailing wage based on the job title and duties. This wage serves as a benchmark to ensure that the foreign worker will be paid fairly and comparably to U.S. workers in similar positions. The prevailing wage determination is crucial, as it helps maintain wage stability in the labor market and prevents the undercutting of U.S. workers’ salaries.
• Recruitment efforts: Employers must undertake a course of recruitment to prove that no qualified or available U.S. workers can fill the position. This includes advertising the job opening in newspapers of general circulation or online during the recruitment period. Employers must also follow specific guidelines regarding the content and placement of the advertisements and maintain detailed records of their recruitment efforts.
• Filing the labor certification: Once the recruitment steps are complete, the labor certification is filed, preferably through the Program Electronic Review Management (PERM) website. This online system streamlines the process and allows for faster processing of applications.
• Audits: In some cases, the Department of Labor may audit the application if they believe the job requirements are restrictive or if they have other questions about the recruitment process. An audit may require additional documentation or clarification from the employer, and it is crucial to address these requests promptly and accurately to avoid potential delays or denial of the labor certification.
• Approval and preference petition (I-140) filing: Upon approval of the labor certification, the employer must file a preference petition (I-140) that includes evidence demonstrating their ability to pay the prevailing wage and that the foreign national possesses the required experience. This step is essential to establish the employer’s commitment to hiring the foreign worker and their ability to support the worker financially.
• Adjustment of status application: If the priority date is current, the foreign worker may apply for an adjustment of status. While most categories currently have shorter wait times than in the past, Indian and Chinese nationals in professional categories may still face significant wait times, even with advanced degrees. This stage is vital as it allows the foreign worker to change their immigration status to that of a permanent resident, granting them the right to live and work in the United States indefinitely.

• Retention of records: Employers must keep detailed records of their recruitment efforts and the labor certification process for a minimum of five years. These records may include resumes, applications, interview notes, and other relevant documentation. In case of an audit or future inquiries by the Department of Labor, maintaining these records can be critical in demonstrating compliance with the labor certification requirements.
• Job portability: Once the labor certification process is complete and the foreign national has been granted permanent residency, they may be eligible for job portability. This provision allows the worker to change employers without jeopardizing their green card status, provided the new job is in the same or a similar occupation as the one specified in the labor certification. Job portability offers increased flexibility and opportunities for career advancement to foreign workers who have successfully navigated the labor certification process.
• Dependents: During the labor certification process, the foreign worker may also include their spouse and unmarried children under the age of 21 as dependents. Once the labor certification is approved and the adjustment of status application is filed, these family members may be eligible for derivative immigration benefits, such as permanent residency or work authorization.
• Compliance and employer obligations: Employers who sponsor foreign nationals through the labor certification process must adhere to strict compliance requirements and fulfill certain obligations. These include paying the prevailing wage, providing the same working conditions and benefits as U.S. workers, and ensuring that the employment of foreign workers does not adversely affect U.S. workers. Failure to comply with these obligations can result in penalties, fines, and even debarment from the labor certification program.

The Importance of Expert Legal Guidance in the Labor Certification Process 

The labor certification process is an intricate and often challenging path to obtaining legal residency in the United States through employment. However, with the right legal guidance and a thorough understanding of the various steps involved, foreign nationals and their employers can successfully navigate this complex process and achieve their immigration goals. By partnering with an experienced immigration lawyer, you can ensure that your labor certification application is handled with the utmost care and expertise, maximizing your chances of success and securing your future in the United States.

Allow Oltarsh & Associates, P.C. to lead you through the process with the proficiency and commitment you deserve. Reach out to us today at 212-944-9420 to arrange a complimentary initial consultation and embark on the journey toward obtaining the legal assistance necessary for attaining your immigration objectives. We eagerly anticipate serving you and aiding in the creation of a promising future in the United States.