labor certification is the DOL’s way of officially letting the USCIS or State Department know that there are no qualified U.S. workers who are willing and able to take the position. Working in conjunction with State Workforce Agencies (SWAs), the Department of Labor, through its Employment and Training Administration (ETA) reviews the proposed employment for compliance with U.S. wage and occupational practices and may guide the actual hiring process. The government wants to be sure that employing an immigrant under the terms described in the application will not adversely affect wages and working conditions of similarly situated U.S. workers.
For more information about labor certifications or for an online application, visit the DOL website at www.ows.doleta.gov/foreign.
Because of labor certification backlogs, the standard procedure can take years. Measures to expedite the process, and a new process to be implemented after this book is published, promise to improve the situation in the future. This is a complicated area of immigration law that requires familiarity with how different positions are defined, their standard requirements and wages, and how to approach both DOL and USCIS processing. Your sponsoring employer should work with a qualified immigration attorney or legal organization (see Chapter 7 for more information about finding reliable help).
Members of the professions holding advanced degrees (professors and researchers) must be internationally recognized in their particular area and meet other requirements, including having earned a master’s degree or a bachelor’s degree with at least five years of post-baccalaureate, progressive experience in the specialty (such as advancing levels of responsibility and knowledge).
Regulations vaguely define exceptional ability as “having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” In order to document your qualifications as an alien of exceptional ability, be prepared to show at least three of the following:
An official academic record showing you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
Letters documenting at least ten years of full-time experience in your chosen occupation
A license to practice the profession or certification for a particular profession or occupation
Evidence you have commanded a salary that demonstrates exceptional ability
Membership in professional associations
Recognition by peers, government entities, or professional or business organizations for your achievements and significant contributions to your field
Your employer may not need a labor certification before petitioning under the second preference category if one of the following is true:
Exemption from labor certification would be in the United States’ national interest.
You qualify for one of the shortage occupations in the Labor Market Information Pilot Program, which defines up to ten occupational classifications in which there are labor shortages. For aliens within a listed shortage occupation, a labor certification will be deemed to have been issued for purposes of an employment-based immigrant petition.
You are employed in an occupation designated as Schedule A. In these cases, the Department of Labor delegates authority to approve labor certifications to the USCIS. Schedule A, Group I includes physical therapists and professional nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except the performing arts).
If you’re a qualified physician who is willing to work in an underserved area of the United States or at a Department of Veterans Affairs (VA) facility, you may be able to skip the labor certification process. In some instances, you’ll be allowed to self-petition for second preference classification, although a qualified employer may also file a national interest waiver on your behalf. In order to fulfill the obligations of obtaining this waiver, you’ll be required to complete an aggregate (accumulated) five years of qualifying full-time clinical practice during the six-year period that begins when you receive the necessary employment authorization documents. You can find information on how to apply by visiting the USCIS Green Card Through a Physician National Interest Waiver (NIW) at www.uscis.gov/green-card/green-card-eligibility/green-card-through-a-physician-national-interest-waiver-niw. If you need more detailed information or have questions not answered on the website, consulting qualified legal counsel is a good idea — they can best help you prepare the documentation needed for your unique case and circumstances.
Another, very restrictive and therefore rarely used, national interest waiver is available on a case-by-case determination of whether foregoing labor certification is in the national interest. This type of waiver is available to nonphysicians also. Unlike the physician national interest waiver, however, approval of this type of national interest waiver waives only the requirement of labor certification, which means it also waives the requirement for a job offer. Therefore, in addition to proving all the elements needed for the national interest waiver, you (or the petitioning employer) also must prove that you hold an advanced degree or are an alien of exceptional ability, as described earlier in this chapter.
Third preference: Skilled or professional workers
This category receives 28.6 percent of the yearly worldwide employment visa pool, plus any unused first and second preference category visas. Unless the job qualifies for a Schedule A designation, or as one of the shortage occupations in the Labor Market Information Pilot, all third preference petitions must be accompanied by a labor certification.
Within the third employment-based preference group are three subcategories:
Skilled workers are persons capable of performing a job requiring at least two years’ training or experience.
Professionals must hold a U.S. baccalaureate degree or a foreign equivalent degree. Unfortunately, a combination of some education and experience cannot be substituted for the actual degree in order to qualify.
Other workers are those persons capable of filling positions requiring less than two years of training or experience.
Note that the third preference category usually generally becomes oversubscribed or backlogged before the higher categories. Also, the “other worker” subcategory of third preference generally becomes oversubscribed or backlogged before the skilled or