Getting Foreign Nationals Permanent Work In The US

When employers can’t find qualified domestic workers, they can find value in bringing international talent to permanently work in the United States. My firm, Arias Villa Law, has been helping employers legally hire the international talent they need.

Arias Villa Law can help you handle the complexities of the United States immigration system so you can focus on hiring, training and advancing your workforce.

How Labor Certifications Work

This process starts with a labor certification filed with the U.S. Department of Labor (DOL). Once the DOL approves the labor certification, the immigration process seeking lawful permanent (LPR) status – or green card – may be filed with Citizenship and Immigration Services (CIS). Employers and foreign employees wishing to obtain their LPR status through a labor certification must know that this process is lengthy, sometimes up to ten years, depending on the category assigned. The labor certification process was modified on March 28, 2005. Any labor certification filed on or after March 28, 2005, is subject to a process called Labor Certification for the Permanent Employment of Immigrants, commonly known as “PERM.”

Rules For Filing A Labor Certification

The labor certification issue is very complex and can require a case-by-case analysis. Those with a labor certification filed or approved before April 30, 2001, are protected under Section 245(i) of the Immigration and Naturalization Act (INA).

A labor certification or PERM must be filed with DOL electronically or by mail. Only the employer can file this petition on behalf of the immigrant. The new PERM regulations establish harsh sanctions for attorneys or persons who do not follow these rules. The PERM process is full of datelines and procedural requirements, such as the company’s in-house notifications, job advertisements, and job announcements. Most procedural requirements must be complied with before filing the actual labor certification petition – ETA form 9089.

Once the labor certification is approved, the employer may start the immigration process in which the employer petitions for the immigrant. This petition is filed on form I-140, which must be filed within six months after the approval of the labor certification.

If the I-140 is not filed within these six months, a new labor certification petition must be filed and the one approved becomes useless. CIS has strict requirements for the approval of I-140s. These requirements include submission of the approved labor certification, some immigration forms, evidence of the employer’s ability to pay the salary, other relevant evidence and an application fee. The I-140 process may take up to one year or more if CIS requests additional evidence.

If the I-140 is denied, the employer may appeal. The process concludes with no benefit for the immigrant if the employer does not appeal. If the I-140 is approved, the immigrant may apply for his LPR status – form I-485 when your category becomes current. A category becomes current when the priority date shows a visa immediately available for that immigrant. The priority date is determined by the date on which the labor certification is.

Categories For Employment-Based Immigrant Visas

CIS assigns four categories for employment-based immigrant visas:

• Priority workers (category 1): Immigrants with extraordinary ability in science, arts, education, business or athletics, outstanding professors and researchers, and certain multinational executives and managers.
• Professionals holding advanced degrees (category 2): Persons of exceptional ability in science, arts or business.
• Skilled workers in short supply (category 3): Professionals holding baccalaureate degrees, and other workers in short supply.
• Certain special immigrants like religious workers (category 4): To understand when a person with an approved I-140 can apply for LPR status, it is crucial to consult an immigration attorney because this is a very legal technical issue.

Employers should hire an immigration attorney to help them process a labor certification. According to the PERM process, a labor certification can be approved in 45 days once submitted to DOL. In practice, the whole process may take up to approximately five months.

Let Me Handle Your Labor Certification Case

As an immigration attorney, I can help companies prepare and file petitions for labor certifications. Call my firm’s Miami office at 305-233-3110 for an online or office consultation.