GETTING A GREEN CARD THROUGH LABOR CERTIFICATION

This memo is written to explain the procedures used to help present or future employees become permanent residents of the United States. After reviewing this memo, please do not hesitate to contact me for clarification, assistance, or answers to any questions that you may have.

The process of becoming a permanent resident (ie. a green card holder) through an “employment-based” application generally has three steps:

     1. The first step involves obtaining approval of a “labor certification” from the Department of Labor (“DOL”). This process can take between several months to several years, depending upon the state in which you are filing the labor certification. Typically, in the Washington, D.C. metropolitan area, this takes approximately 6 to 18 months.

     2. The second step involves obtaining approval of a visa petition (filed by the employer) from the Bureau of Citizenship and Immigration Services (formerly known as the INS). This takes approximately 6 to 8 months.

     3. The third step involves the alien employee?s application for an immigrant visa at an American Consulate abroad (if the sponsored immigrant is outside of the U.S.) or for adjustment to permanent resident status at the local BCIS office if the sponsored immigrant is already in the U.S. While processing the immigrant visa at a consulate abroad can take anywhere from 3 to 6 months, processing at a Regional BCIS office can take anywhere from 1 to 2 years! These time frames are approximate. We will be happy to try to give a more precise estimate before starting a case and update that estimate as the case progresses.

In virtually all cases where an immigrant is becoming a permanent resident through a job offer, an application must be made for approval of a labor certification.

It is important to remember that the job offer being used need not be the one in which the intending immigrant is currently employed. The intending immigrant may be employed in another occupation with the same employer, or with another employer altogether, or may even be outside the United States. However, it is required that both the employer and employee intend that the employee will work in the job position stated in the labor certification once the employee’s application for permanent residence is approved.

Completing the forms

It is the responsibility of this office to prepare, complete and submit the application for labor certification to the local State Employment Office. Please be sure to read the forms carefully and ask any questions you have. The labor certification application has two parts: (1) Part A which describes the position and the minimum qualifications; and (2) Part B which describes the past experience and qualifications of the employee. Of course, there must be a connection between the requirements of the job and the qualifications of the intending immigrant. It is necessary, before the papers are filed, that each special qualification and requirement of the position be justified, including number of years of experience in the position or in a related position. It is our responsibility to do this, with your assistance.

Advertising

Once the labor certification application has been prepared, reviewed by the employer, and submitted, and after it has been reviewed by clerical employees at the local job service office level, we will be instructed to place advertising. The purpose of the advertising is to see whether there are any American or permanent resident workers who are qualified for the position. Should any be qualified, while the employer is not required to employ them, the labor certification will not be approved. There is nothing improper or questionable about going through this recruitment process, even though the intending immigrant may he actually employed by the employer. If anyone applies for the job, the employer is required to review their application or resume and, with our assistance, describe any reasons why he/she is not qualified.

It is the responsibility of our office to draft, obtain approval for, and place the required advertising. We will advise you in advance. In the Washington, D.C. area, nonprofessional jobs can be advertised in the Washington Times; professional jobs are advertised in the Washington Post. Sometimes specialized jobs must be advertised in professional journals or in national newspapers such as the New York Times and the Wall Street Journal. The advertising which is placed refers only to the local job service office and does not mention your name or address.

At the same time the advertisement is placed, the job is entered into a computerized job bank available to the public but used primarily by unemployed workers. Also, we will provide the employer will a “posting notice”, worded in a specific way, which must be posted for ten business days in a place where employees would normally see the notice. Specific instructions will be given to the employer at that time.

Thus, applicants can come from any of three sources: the advertising, the computerized job bank, or the posting notice on the premises. All applicants, except those who respond to the posting notice, come through the local job service office.

The Recruitment Process

If the position is one for which resumes may properly be required, those resumes will be forwarded to the employer from the local job service office. It is important that these resumes be kept in one place and not lost. Copies are not sent to the attorney by the local job service office. We will assist the employer in reviewing the resumes and in deciding which, if any, applicants must be contacted and interviewed. The contact must be made by the employer and may not be made either by the intending immigrant or by our office. Typically, we recommend that the employer make contact by telephone, followed up by a certified letter to confirm the conversation and/or the date and time of any future scheduled interviews with the applicant. It is important that the employer keep close track of any efforts made to reach potential applicants and make notes of conversations with applicants, and any reasons why the particular applicant may not qualified. If necessary, we will assist in providing formats of letters which will be sent to the applicants.

When applicants are referred from the local job service office as a result of the computerized job bank, or in cases which do not involve resumes, applicants will frequently appear in person or call. If this happens, it is vitally important that the employer keep track of the names, addresses and telephone numbers of these applicants. It is not necessary to set up an interview at first. The interviews can be scheduled and conducted later so that all contacts can be made in a way that is minimally intrusive to the employers business. Again, you will receive instructions and assistance from our office regarding these procedures. Please feel free to call upon us as often as you want if you have questions or concerns, or if you need help in comparing the qualifications of applicants to the specific requirements set forth in the original labor certification papers.

It is our responsibility to prepare the report of recruitment and to results report to the DOL describing each person who applied by resume or in person or who was referred from the job service office, the advertising in the newspaper, or the internal posting notice.

After the recruitment result report is received by the local office, the case is forwarded to the DOL regional office. For the Washington, D.C. area, this is in Philadelphia. That office has the final say on all aspects of the case. It is the regional office, acting on instructions of the DOL, which may change the interpretation of the rules without any prior notice. Decisions made by the local office can be overruled or second-guessed at this stage. We will do our best to respond to these changes and interpretations in a way which minimizes any potential inconvenience to the employer and which, of course, also protects the interest of the intending immigrant in obtaining approval of the labor certification.
The Visa Petition

Once the labor certification is approved, an application for a visa petition is submitted to the BCIS, using Form 1-140, which we will complete based on information which has been furnished to us. That application needs to be signed by the employer. Along with Form 1-140, we will submit to the BCIS the original labor certification and proof that the employee has the minimum requirements called for in the labor certification. For example, if the labor certification calls for a Master?s Degree in some field, we will need to submit a copy of a diploma or university transcript. If the labor certification required two years of experience as a cook, letters from previous employers must be submitted showing those two years of experience.

Evidence must also be submitted demonstrating the ability of the employer to pay the salary in question. Typically, this obligation is met by submitting the business tax return, whether it is a corporate tax return on Form 1020, a partnership tax return, or Schedule C of a sole proprietor?s personal tax return. This financial information must cover the date when the labor certification was first submitted. If tax returns are not available, we are permitted to submit financial reports of the business prepared and signed by an accountant. We are also able to arrange for other alternatives when necessary. Sometimes, the W-2 statement of the employee, if that person is actually working for the employer, is sufficient. If you have any questions at all about the requirement of showing ability to pay, please raise them as soon as possible. It is best if we review this financial information before filing the labor certification. In recognition of the employer’s privacy interests, we will keep this information confidential and will not share it with the employee or any other party. The BCIS usually takes approximately 6 to 8 months to act on and approve the visa petition.

Immigrant Visa Processing or Application for Permanent Residence

Once the visa petition has been approved, if the employee is outside of the U.S., it is sent to an office of the Department of State for processing at the consulate in the employee’s home country. If the employee is in the U.S., and is eligible to adjust status, the employee may apply directly to the BCIS to obtain his or her green card in the U.S. The employer?s responsibility in this regard is to sign a “job letter”, which we will prepare just before the immigrant visa appointment, reconfirming the existence of the job offer.

Conclusion

We hope this letter has been useful in setting forth the general procedures to be followed, as well as explaining what will be needed from the employer. If you read anything in this letter which concerns you or which you think will be a problem, please do not hesitate to contact our office.

Thank you very much for your cooperation.

                                                                                                Sincerely,

                                                                                                Sean D. Hummel