LABOR CERTIFICATION


In order to obtain permanent residence in the United States based on employment, a job offer in a field in which the prospective employee has had experience, education, or both is necessary. After a comprehensive recruitment process by the employer, the case is submitted to the Department of Labor to prove there is a shortage of U.S. workers in a particular occupation and in the geographical location where the prospective employer is located.

The rate of pay offered must be at the “prevailing rate”, meaning the rate normally paid for that position as determined by the Department of Labor. Following the employer’s recruitment, if it is determined by the employer that there are no available or qualified applicants for the position being offered, the application for labor certification is submitted online to the Department of Labor. Once certified by the Department of Labor, the labor certification is filed with U.S. Citizenship and Immigration Services (USCIS) along with the petition and supporting documents from both the employer and prospective employee.

If the employer’s position is approved by USCIS, the next step is for the employee (and spouse and minor children) to apply for permanent residence.

However, beginning July 2005, the visa numbers for the labor certification category (EB-3) are backlogged. Currently they are backlogged for approximately 7 years.

If the prospective employee is in the United States, they would need to maintain their visa status (typically H-1B) until they qualify to apply for permanent residence. Visa numbers are current for those who have a master’s degree (or the equivalent of a bachelor’s degree plus 5 years of progressive, post-degree experience). For employees who fall into that category (EB-2) once the application for labor certification is certified by the Department of Labor, they would qualify to apply for permanent residence (please note that visa numbers are still backlogged for nationals of mainland China and India).