| 1. | What has happened to RIR labor certifications? |
| As of March 28, 2005, all Applications for Permanent Alien Employment are filed through the PERM system. All pending standard and RIR applications are being processed at one of two Backlog Elimination Centers, and processing is expected to be completed by September 2007.
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| 2. | What is a labor certification? |
| Labor certification is commonly the first step in the permanent residence (green card) process. The labor certification is a finding by the Department of Labor that there are no qualified, willing, and available U.S. citizens or permanent residents in the area of intended employment. This finding allows an employer to file an employment-based immigrant petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of a foreign national.
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| 3. | What is the purpose of the labor certification? |
| The labor certification is a test of the local labor market to determine whether there are qualified U.S. works to fill the position the foreign national will hold (and in many cases already holds). The lack of workers provides the necessary justification for the foreign national’s immigration to the U.S.
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| 4. | Who needs a labor certification? |
| Most individuals immigrating on the basis of employment require a labor certification. There are exceptions for individuals such as EB-1 Aliens of Extraordinary Ability, Outstanding Researchers/Professors, or Multinational Manager/Executives; National Interest Waiver applicants, and Immigrant Investors; and also for individuals who will be engaging in pre-certified shortage occupations such as registered nurses. If you are currently in the U.S. as an L-1A or an O.
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| 5. | What is PERM? |
| PERM stands for Program Electronic Review Management System, the online, attestation-based system for all labor certifications created by the U.S. Department of Labor.
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| 6. | Do I need a sponsor file for labor certification? |
| Yes, a valid offer for full time, permanent employment is required to file for labor certification.
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| 7. | Do I need to be employed by the sponsoring employer before a labor certification may be filed? |
| No, a labor certification is filed for prospective fulltime, permanent employment. An individual only needs to have the intent to work for the sponsoring employer once the “green card” is received, and does not need to work for the employer during the sponsorship process.
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| 8. | Can I file the labor certification on my own? |
| No, your company must file the labor certification on your behalf. In addition, new Department of Labor regulations require your employer to pay all fees associated with the labor certification, including legal and advertising fees. However, you may pay the fees associated with the required later, US Citizenship and Immigration Services-adjudicated petitions.
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| 9. | What are the fees associated with the labor certification? |
| Currently, the two major costs involved with the filing of a labor certification are advertisement fees and attorney’s fees. There are no current filing fees. Advertising may cost anywhere from a few hundred to a few thousand dollars, depending on the advertising methods chosen and the detail in the advertisements.
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| 10. | How does the PERM process work? |
| The PERM process requires an employer to conduct a recruitment in accordance with Department of Labor regulations for the position the sponsored employee will hold once permanent residence is received. This recruitment must take place over at least a 30 day period, followed by 30 days of waiting for resumes to be received. Provided no qualified, willing, and available U.S. applicants are found, the employer may file the case after the 60th day.
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| 11. | Does my employer have to pay me a set wage? |
| Yes, the state workforce agency will determine the required prevailing wage for your occupation. The wage is based on the occupational classification and experience requirements for your position. An employer may also submit an alternative wage survey that meets Department of Labor requirements, and pay the wage listed in that survey.
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| 12. | Why is my labor certification wage different than the one on my H-1B? |
| The labor certification prevailing wage determination and the prevailing wage determination for H-1B purposes are separate processes. The labor certification prevailing wage is generally different than the wage you received when you filed the H-1B. This is because the labor certification prevailing wage reflects the most current wage and the Department of Labor’s determination of the appropriate wage level. In the H-1B context, employers are permitted to pick the appropriate occupational classification and wage level. Also, unless you filed the H-1B very recently, the relevant wages have likely increased.
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| 13. | When does the wage need to be paid? |
| The wage does not generally need to be paid until permanent residence is received. In some cases, the company may need to start paying the wage at the time of filing of the labor certification. This occurs if the company does not have current net income or assets that meet or exceed the prevailing wage.
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| 14. | Is a labor certification valid indefinitely? |
| No, a labor certification expires 180 days after certification (approval). A related I-140 Immigrant Petition must be filed within the 180 day window in order for the labor certification to be used to immigrate to the U.S.
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| 15. | If my labor certification is approved, will it provide me with legal work authorization in the U.S.? |
| No, the labor certification itself does not provide work authorization. It is the first in a three step process, the last of which provides an option for work authorization. Once the labor certification is approved, an individual may be able to file an Adjustment of Status application and the related application for Employment Authorization Document, which is a work permit. Individuals may only file the Adjustment of Status if their priority date is current.
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| 16. | What is a priority date? |
| A priority date marks your place in line to receive an immigrant visa, which allows you to be admitted to the U.S. as a permanent resident. The priority date is set by the date the labot certification is filed. The Department of State provides a monthly update on which priority dates are “current”—meaning that individuals with that priority date or earlier are at the front of the line of immigrants waiting to receive an immigrant visa.
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| 17. | Does the labor certification give me legal status in the U.S.? |
| No, the labor certification itself does not provide an individual with legal status in the U.S.
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| 18. | Can I switch from my H-1B to PERM? |
| No, because the labor certification does not provide legal status or work authorization, an individual must maintain lawful nonimmigrant status such as an H-1B if he or she wishes to work during the sponsorship process. However, once the Adjustment of Status is filed an individual may be able to obtain an Employment Authorization Document, which can be used for work authorization in lieu of an H-1B.
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| 19. | What happens if I change jobs or am laid off during the labor certification process? |
| Changing jobs will not affect your labor certification as long as you and the sponsoring employer intend for you to fill the prospective job opportunity designated in the labor certification once your green card is received.
If you do not intend to resume employment with the sponsoring employer, changing jobs will necessitate a new labor certification unless you are portable (Portability).
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| 20. | What if my employer is purchased or merges with another employer during the labor certification process? |
| Provided the new employer assumes the immigration-related liabilities and obligations of the sponsoring employer, a successor-in-interest relationship will be created and the new employer may continue to sponsor your labor certification.
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| 21. | Is it permissible for me to have two or more labor certification applications pending? |
| It depends. A company may not file multiple applications for the same individual and same job opportunity. However, a foreign national may have more than one application filed if by more than one employer.
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| 22. | What are the requirements for the EB-2 and EB-3 categories? |
| The EB-3 category is for positions that require at least a Bachelor’s degree or the equivalent. The EB-2 category is for positions that require a Master’s degree or a Bachelor’s degree (an actual Bachelor’s degree, not the equivalent) plus 5 years of progressive, post baccalaureate experience. In addition, you must also have the requisite level of education and/or experience.
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| 23. | Can I use experience gained with my current employer to qualify? |
| The PERM regulations prohibit the use of experience gained while working for the employer in the position listed in the labor certification. Experience gained with the sponsoring employer may be used if you were working in a position significantly (more than 50%) different than the labor certification position, but this can be a difficult argument to make.
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| 24. | I have a three year bachelor’s degree and five years of progressive, post baccalaureate experience. Can I qualify for EB-2? |
| It depends. The USCIS looks to see whether the degree is a US equivalent by comparing the number of credit hours the degree requires. Situations in hich a three year degree may be acceptable for EB-2 include those where an individual entered a university with advance standing, degrees granted by certain countries with 13 years of secondary education, and a three year degree followed by a three year Master’s degree.
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| 25. | How are the position requirements determined? |
| These requirements are determined by your employer and are based on the minimum levels of education and experience required for the position, not the preferred levels. Your employer is legally required to only use the minimum requirements for the position, and cannot tailor the requirements to your credentials, nor can they use higher requirements as a “favor” to you so that you may be EB-2. The requirements must reflect your employer’s actual hiring practices, so they must also look at the qualifications of the other people employed in your position.
The requirements are not based on salary, although the salary level generally increases as the requirements increase.
Finally, the Department of Labor classifies all jobs through a system of job zones. Each job zone indicates the maximum allowable education and experience for the job. If an employer’s requirements exceed those listed in the job zone for the position, the case may fail unless the employer is able to demonstrate that the requirements arise due to business necessity.
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| 26. | Can I fit in the EB-2 category if I have a Master’s degree? |
| Because the categories are based on the requirements of the position as well as on the employee’s qualifications, having a Master’s degree does not guarantee that you will fit in the EB-2 category. For example, if your position requires only a Bachelor’s degree plus 3 years of experience, you will still be in the EB-3 category even though you have a Master’s degree.
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| 27. | Can the requirements be for a position I might hold in the future? |
| If your employer can guarantee that you will hold a certain position at the time you obtain your green card, the labor certification position requirements may be based on that future position. Regardless, the labor certification is position-specific, so you and your employer must make sure that the position listed is broad enough to allow for reasonable job growth. It is possible to be promoted into a new position that requires a new labor certification.
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| 28. | How slow are the two categories? |
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The EB-2 and EB-3 categories represent two quotas of immigrant visas allocated each year by the Department of State. A backlog is created when there are more visa requests that the government has visas to give. The visa processing is based on the date the labor certification is filed. When this date becomes “current” (i.e. a date later than yours appears in your category on the visa bulletin), the adjustment of status application (final step of the green card process) may be submitted or, if already submitted, may be approved. It cannot be submitted prior to that time. Here is a link to the visa bulletin: visa bulletin. Select “Current Visa Bulletin”.
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| 29. | Will I “run out of time” before my category becomes current? |
| If you are currently in H-1B status, and your labor certification is filed at least 365 days before the end of your 6th year, you can extend your H-1B status indefinitely until you receive your green card. There is no running out of time, as long as your labor certification is filed on time, no matter whether you are EB-3 or EB-2. However, individuals in a status other than H-1B may run out of time, so it is important for these individuals to either switch to H-1B or get their green card process started as soon as possible.
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