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Labor Certification with & without Special Handling (EB-2)

The most common way for individuals to obtain U.S. permanent residence through employment involves a three step process, requiring an application for alien employment certification with the U.S. Department of Labor (DOL), a petition for an immigrant worker with U.S. Citizenship and Immigration Services (USCIS) and finally, a request for an Immigrant Visa, which can be filed through USCIS in the U.S. or through the U.S. Department of State.

Step 1: File a PERM Labor Certification Application

In the PERM labor certification process, the DOL will make a determination whether it believes there is a shortage of U.S. workers who are qualified, willing, and able to perform the duties of the position for which the employer is seeking certification and whether the employment of the individual will have an adverse effect on the wages and working conditions of U.S. workers similarly employed.

table outlining the steps to apply for a PERM labor certification

 

Prevailing Wage Requirement

Under PERM, employers are required to pay 100% of the prevailing wage. Prior to the filing of the application, the employer must request a prevailing wage determination from the DOL. An employer can expect to receive a determination from the DOL within approximately six months. The employer is not required to wait until they receive the prevailing wage determination to begin the pre-filing recruitment described below. However, they must have a determination that is valid either when they begin recruitment, or when they file the PERM labor certification application with the DOL.

 

Pre-Filing Recruitment

All employers must perform certain pre-filing recruitment activities prior to the filing of a PERM labor certification application. At a minimum, the employer must do all of the following:

  1. Place two print advertisements on two different Sundays in an appropriate newspaper.
  2. Post a job opportunity notice at the employee’s worksite for a least ten consecutive business days.
  3. Place a job order with the State Workforce Agency for a period of 30 days.
  4. If the employer normally uses electronic or printed in-house media to recruit for similar positions, then they must also use this in-house media for the position for which certification is sought.

Positions that are listed as ‘professional’ positions in the preamble to the PERM regulation must undergo additional recruitment steps. For these positions, the employer must choose three of the following types of recruitment:

  • Job fairs
  • Posting on the employer’s website
  • Advertisement in a Job Search website other than the employer’s
  • On-campus recruiting
  • Job posting notice to trade or professional organizations
  • Private recruiters
  • An employee referral program, if it includes incentives for employees to find a match for the position
  • A notice of the job opening at a campus placement office, if the job requires a degree but no experience
  • Ads in local and ethnic newspapers, if appropriate for the job opportunity
  • Radio and television advertisements

Recruitment Report

Once the employer has completed the required recruitment, they must prepare a recruitment report that describes the recruitment steps taken and the results of that recruitment. This report must include the number of individuals hired and the number of U.S. workers rejected and must categorize the lawful job-related reasons for rejecting each applicant.

Filing the Application

Once all of the necessary recruitment has been completed, and 30 days have passed since the last recruitment step has been performed, the employer may file the PERM labor certification application with the DOL. 

Special Rules for College & University Teachers

"Special Handling"

 College and university teachers are entitled to ‘special handling’ of their PERM labor certification applications. Under this process, the college or university needs to document a ‘competitive recruitment and selection process’ for the position, which is an easier standard to meet than for other PERM labor certifications. With an application for university teachers, the school only needs to document that they hired who they felt was the most qualified applicant who was willing to take the job, and not that there are no U.S. workers minimally qualified to take the offered position.

As soon as the Labor Certification has been filed with the Department of Labor, the “priority date” for the applicant is established. This date determines when someone can complete step #3, i.e. the Adjustment of Status. (If no Labor Certification is required, the priority date is established with the filing of the Immigrant Petition/ Form I-140 below.)

Step 2: File the Immigrant Petition/Form I-140

Once the application for alien employment certification is approved or ‘certified’ by the DOL, the next step in obtaining U.S. permanent residence through employment is the filing of an Immigrant Petition for Alien Worker (Form I-140) by the employer with the United States Citizenship and Immigration Services (USCIS).

Current law allows for the concurrent filing of an Application for Adjustment of Status (I-485) together with the Form I-140, provided there is an immigrant visa number immediately available, which is determined by a monthly bulletin issued by the Department of State. In many circumstances, a visa number might not be immediately available, and the individual will need to wait until the I-140 is approved and a visa number becomes available before filing for Adjustment of Status in the U.S. In some circumstances, this waiting period can be many years. This is not always recommended. However, if the I-140 is denied, the I-485 will also be denied when filed concurrently.

Step 3: Filing an application for Adjustment of Status or Request for Immigrant Visa at U.S. Embassy or Consulate Abroad

The filing of an application for Adjustment of Status allows an individual who is in the U.S. in lawful status to remain in the U.S. for the entire time that the application is being processed. Additionally, when filing for Adjustment of Status, an individual may apply for employment and travel authorization for spouses and minor children. Alternatively, an individual can wait for the Immigrant Petition to be approved and an immigrant visa to become available and then request their permanent residence interview at the United States Consulate or Embassy in their home country. This option requires the individual to travel back to the country of citizenship to appear for an interview at the U.S. consulate to obtain approval of the immigrant visa.