Labor Certifications

Most persons wishing to enter the United States permanently in order to work will have to qualify for labor certification. In order to qualify for labor certification, the alien needs a US employer who is willing to file an application on his or her behalf. The application is filed with the Labor Department in the area where the alien will be employed. The Labor Department regulations are quite lengthy and burdensome. They require advertising the job and going through a recruitment process to ascertain whether there are any US workers willing, able, and qualified for the position, and that the prevailing wage will be paid.

Please read the instructions, attached to the application, carefully to make sure that all of the requirements are followed. Also review the Labor Department regulations for additional guidance and assistance.

After the labor certification is approved, the petitioner will file the I-140 petition with the immigration service center that has jurisdiction over the area where the alien will be employed. Attached to the petition should be the original approved labor certification, evidence of the alien’s experience or education, which was required in the labor certification application, and evidence that the petitioning company has sufficient funds in order to pay the proposed salary stated in the application. Also attach the correct filing fee.

If the beneficiary is in the United States and eligible to file for adjustment of status, he or she should also complete form I-485, together with the G-325A biographic information form, photographs, and a medical exam, and attach the applicable filing fee. Again, please read the instructions attached to the application to determine what other documents may be needed, and what the filing fees are. Please note: If you are subject to Section 245 (i) of the Immigration Act, you may also have to pay an additional penalty fee of $1000.00.

Note: Whenever you mail any forms or documents to the immigration service, you should always do so by certified mail, return receipt requested, or by some form of express mail for which you can obtain proof of receipt. This is very important in the event that immigration loses your application. In that event you can submit your proof of receipt, with evidence of payment, and you keep your priority date as well as not having to pay the fee again.

Labor certification is only filed on behalf of the principal alien (the person to be employed by the business in the United States). When labor certification is approved, the spouse and minor unmarried children of the principal beneficiary (known as the accompanying aliens) can be included in the I-140 petition. The principal applicant and each accompanying family member must file a separate application for adjustment of status to permanent residence in the United States. Please note: Each application must have attached to it all of the documents listed above, except that the accompanying aliens do not need to attach a copy of the I-140 documents to their applications.

Once the application(s) for adjustment of status is properly filed with the service center, the Immigration Service will issue work authorizations to each person who applied, usually within 90 days. Thereafter, the aliens will be scheduled to have their fingerprints taken at an immigration support center. Employment based applications are usually approved by mail without the need of a personal interview. (In the event that an interview is requested, it will be scheduled at the local immigration office nearest the place where the principal beneficiary lives.)

The approval notice will be mailed to the beneficiary notifying him or her (together with the spouse and children, if applicable), to appear at the local immigration office nearest where the beneficiary lives to have a temporary permanent resident stamp placed in the passport. This stamp will constitute evidence of permanent residence status and work authorization, until the alien card(s) arrives in the mail. It usually takes 3-6 months to receive the alien card(s), but during this period the person is entitled to all the rights of a permanent resident including the right to work, travel, attend school, petition for qualifying family members, etc.