What is the process?
The process involves two steps: 1) Labor Certification Application and Immigrant Petition for Alien Employee; and 2) Adjustment of Status or Immigrant Visa Application.
Normally, an employer is required to prove to the Department of Labor that it cannot find US workers for the position. Because the Department of Labor has already determined that there are not enough nurses to meet the demand for nurses in the US, nurses are classified as “Schedule A”, which means that no forms get filed with the Department of Labor.
Your employer is required to provide notice to the Bargaining Representative, if the position is unionized, or to its other employees, if the position is not unionized, that the labor certification/immigrant worker petition will be filed and to provide them with an opportunity to submit comments to the US Department of Labor.
The notice must be posted in a conspicuous place, normally the place the employer posts its job openings. Also, if the employer posts job openings on an intra–net web site, in newsletters, or other media, the employer must post the notice of the filing of the Labor Certification in these media as well.
2. Filing the Application for Permanent Employment Certification (ETA 9089) and the Immigrant Worker Petition (I-140) with USCIS
The Application for Permanent Employment Certification (ETA 9089), which details the position and its requirements, and your qualifications, must be prepared.
On the form, your Employer is required to make a number of attestations, and must therefore have the necessary documentation to support the attestations. These attestations include that your employer will pay at least the prevailing wage for the position.
The Department of Labor requires that your employer be solely responsible for all the costs related to the preparation of the Application for Permanent Employment Certification (ETA 9089). Either you or your employer may pay the rest of the fees.
Our firm would prepare the forms and would assist in ensuring that the required documentation is available. Your employer is required to retain this documentation for a period of five years from the date of filing of the Labor Certification.
Department of Labor regulations promulgated on May 17, 2007, require that the employer pay all costs associated with the preparation of the Labor Certification Form, including attorney’s fees.
The ETA-9089 must then be filed, together with the Immigrant Petition for Alien Worker (Form I–140) with the US Citizenship and Immigration Services.
The Immigrant Petition establishes the preference classification for your employment based permanent residence, 3rd Preference, and the Priority Date. This filing must evidence that your employer has the ability to pay the wage offered on the Application for Permanent Employment Certification, and evidence that you meet the minimum education, experience and/or special skills required in the Labor Certification.
Important: An approved I–140 is not a work permit, does not authorize you to be employed, and does not give you any immigration status.
1. You file an Application to Register Permanent Residence or Adjust Status when your priority date is current
You must have the VisaScreen before you can proceed to this step, as you will not have time to get it during the processing of this step.
Recently, the US Department of State, through its monthly Visa Bulletin, confirmed an oversubscription of permanent residence approval in the relevant Employment Based 3rd Preference category, which has caused a worldwide backlog.
What this means is that in most instances, even if the US Citizenship and Immigration Services approves the Immigrant Petition for Alien Worker, there will be a “wait time” of potentially 4 to 8 years, depending on your country of birth, to complete your permanent residence processing through either: 1) the Application to Register Permanent Residence or Adjust Status (Form I–485) filed in the US, or 2) the Immigrant Visa Application filed with the appropriate US Embassy abroad. Due to the current extended “wait time,” it is not necessary to plan or decide on these choices at this time.
What are the Requirements?
1. The Position Must Be Full–Time
The law requires that the position through which a foreign worker gets a “green card” be a full–time position.
2. There Must Be A Bona Fide Job Opening
Legally, this means that you cannot have any say in the recruitment process. The application could be denied if the employer is a closely held corporation, partnership, or sole proprietorship in which you have an ownership interest, or an application in which you have a familial relationship with the owners, stockholders, partners, corporate officers, or incorporators of the company.
3. The Job Requirements Must Be the Minimum Normal Requirements For The Occupation in the United States
The requirements that are regarded as normal for the occupation are those that the US Department of Labor has established, through their various studies, are the minimum requirements to be able to perform the duties of the position. The requirements cannot be tailored to your experience and education. For example, a company cannot require a M.D. degree from a nurse simply because you happen to have a M.D. degree.
4. The Salary/Wage Must Be Equal To Or Greater Than The “Prevailing Wage” For The Position
Because the whole process is designed to encourage the hiring of US workers, the law requires that the salary/wage offered must be equal to or greater than the “prevailing wage.” If a range is used, the lower end of the range must be equal to or greater than the “prevailing wage.”
If the position is unionized, the “prevailing wage” is the wage determined by the collective bargaining agreement.
If the position is not unionized, the “prevailing wage” is the mean, or if the mean is not available, the median, of the wages being paid for the position in the area where the position is located.
The US Department of Labor generally uses a survey they have conducted for immigration purposes. This survey, which has four levels, is available at http://www.flcdatacenter.com.
Alternatively, an employer can submit alternate surveys. However, the US Department of Labor has final word on accepting these alternate surveys.
Alternate surveys should be for the position in the area of employment. They must include a large enough sample, usually at least eight different employers, must reflect the actual salaries paid by the participating employers to its workers in the position in question, and must show the mean, or mathematical average of these wages.
How Long Will The Process Take?
Unfortunately, it is impossible to provide an accurate timeline. The process is a multi–step and multi–form process, with each step and each form having different and constantly varying processing times.
However, as of this time, it is safe to say that the whole process will almost certainly take several years.