EB-2 & EB-3 & Labor Certifications
The labor certification ensures U.S. citizens and the Department of Labor that the immigration of a foreign national on the basis of an employment offer will not adversely affect the wages and working conditions of U.S. workers. This process is generally used for professionals, skilled workers and other workers (EB-3) and workers with advanced degrees or exceptional (EB-2).
A labor certification is not required for first preference persons of extraordinary ability (EB-1) and fifth preference employment creation or investor immigrants (EB-5) because no adverse labor consequence is thought to flow from these classifications. Additionally, exemption from individual labor certification exist via a national interest waiver for certain members of the professions holding advanced degrees or foreign nationals of exceptional ability (EB-2).
A Labor Certification is required prior to petitioning the U.S.C.I.S. for Permanent Residence (green card) for certain Employment Based Immigrant Visas.
The Department of Labor (DOL) must certify to the U.S.C.I.S that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. This process is now known as “PERM” and requires the employer to first search for such qualified and willing workers.
The Qualifying Criteria, include:
- The employer must confirm any layoffs in the related field during the 6 months before a PERM is filed.
- The employer must hire the foreign worker as a full-time employee. Employer must maintain records/resumes of recruitment for Five Years.
- There must be a bona fide job opening available to U.S. workers.
- If a U.S. worker/applicant is deemed Qualified, the Petitioner must either hire the worker or cancel the PERM process.
- Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
- The employer must also provide proof of the “ability to pay” the prevailing wage. This includes a net income or net current assets higher than the wage. The employer may also show that they have been actually paying the employee this wage under their current employment and work visa.