Foreign workers may obtain green cards to come to the United States only if their potential U.S. employer can prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification." (The requirements are much less for foreign workers seeking to enter the U.S. on temporary, nonimmigrant visas, such as H-1Bs and H-2Bs, which are not covered here ; for more information, see Who Qualifies for a Nonimmigrant (Temporary) Visa.)
Step-by-Step Procedures for Labor Certification
The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.
1. Employer Requests Prevailing Wage Determination
Under the new procedures, the first step is for the employer to request what's called a "prevailing wage determination" (PWD) from the U.S. Department of Labor (DOL) using an online system called iCert. The PWD will indicate how much is normally paid to people in jobs equivalent to the one being offered. This information is important because the employer must offer the immigrating worker 100% or more of the prevailing wage. The PWD is valid for no longer than one year, and sometimes for less time.
2. Employer Advertises and Recruits in the U.S.
Next, the employer can begin making the required good faith effort to find a U.S. worker for the job, by advertising and recruiting in the United States. (Actually, the employer can start recruiting U.S. workers before this, but must make sure to offer a salary that's at least as high as the prevailing wage.)
The Department of Labor (DOL) regulations spell out strict rules for recruiting. For starters, the employer must post a job notice at the worksite and announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the DOL regulations.
3. Employer Files PERM Labor Certification Application Form
If, after the recruiting is done, the employer has not found a qualified, willing, available, and able American to take the job, it can submit what's called a PERM labor certification application to the U.S. Department of Labor (DOL). The application involves completing a multi-page DOL form (ETA-9089), preferably online at www.plc.doleta.gov. Or, a pdf version is available on the DOL website at www.foreignlaborcert.doleta.gov. No supporting documents need be submitted, though they must be available in case DOL requests them.
The DOL is supposed to make a decision on the labor certification within 45 to 60 days, but often fails to meet this deadline. Decisions may take up to a year.
Next Steps Toward a Green Card
Only after the labor certification is approved can the employer and immigrant proceed forward. First, the employer must file a visa petition on USCIS Form I-140. The visa petition process is described in the article The Visa Petition: First Step for Family and Employment Green Cards. After the visa petition has been approved, the immigrant must apply for a green card, either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas). For more information, see How to File a Green Card Application.
Exceptions to Labor Certification Requirement
For workers in the following categories, no labor certification needs to be filed before the worker applies for a green card. These exceptions include:
- workers in what is called the "employment first preference" category, including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
- millionaire entrepreneur immigrants ("employment fifth preference")
- religious workers coming as "special immigrants" ("employment fourth preference"), and
- people whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes there is a shortage of such workers.
For detailed information on applying for the labor certification and employment-based green cards, as well as nonimmigrant work visas, such as the H-1B visa, see U.S. Immigration Made Easy, by Ilona Bray (Nolo). If you're an immigrant worker, your U.S. employer should hire an attorney, or have one on staff to help with this process. If you're interested in consulting an attorney on your own, you can research attorney profiles on the Nolo Lawyer Directory.