Green Card Through a Job
Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. The Immigration and Nationality Act (INA) requires that some aliens seeking to immigrate on the basis of an offer of U.S. employment first receive a labor certification from the U.S. Department of Labor (DOL). Labor certification is a necessary preliminary step for the employer to proceed with a permanent resident petition with the USCIS (former INS) for its foreign employee.
Once the application is certified (approved), the employer must petition the U.S. Citizenship and Immigration Services (USCIS) for a visa. Approval by DOL does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the INA.
The labor certification ground for inadmissibility, § 212(a)(5)(A) of the INA, requires that the Secretary of Labor make two findings as part of the labor certification:
• qualified U.S. workers cannot be found at the time of filing the application and in the area of intended employment who are available, willing, and able to fill the position being offered to the alien; and
• employing the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Because the labor certification requirement is famed as a ground for inadmissibility that the alien must overcome in order to be accorded permanent resident status, it is clear that the burden falls on the employer and the alien to establish that the certification can be made.
The DOL has interpreted the ground for inadmissibility to require that the employer offer to pay the alien at least the prevailing wage for similarly employed U.S. workers in the area of intended employment. It has also interpreted the statute to require that the employer undertake a prefiling recruitment campaign to determine the availability of qualified U.S. worker for the position if even one is available. A U.S. worker who meets the employer’s minimum requirements for the job is considered available even if the alien is equally or more qualified; the employer must express a willingness to hire any minimally qualified U.S. worker under the DOL interpretation of the labor certification requirement. U.S. workers include citizens, permanent resident aliens, aliens granted temporary residence under one of the 1986 legalization programs, refugees, and asylees.
Under the DOL interpretation of the labor certification requirement, the job being offered by the employer must be:
(1) located in the United States,
(2) full-time, and
(3) permanent.
Employers are highly advised to seek help of a professional attorney in labor certification cases.
