Petition through Labor Certification

The permanent immigration process consists of proving to the Immigration and Naturalization Service and the Department of Labor that the sponsoring U.S. Company was not able to find a qualified American worker for the position. The Labor Certification is the most intensive, time-consuming and difficult of all employment-based petitions.

The DOL, in concert with the local State Workforce Agency, processes applications for Alien Employment Certification. The date the labor certification application is filed is known as the priority date. After the labor certification application is approved by the Department of Labor, it should be submitted to the INS service center with an I-140, Immigrant Petition for Alien Worker.

For the traditional application, an employer is required to go through a recruitment process as if there is a position available within the company. This is considered a test of the job market to determine whether there are qualified American workers for the position. A traditional application requires an employer to run an ad in a local newspaper, post notice of the job availability within the company, and review resumes received in response to the ad.

The INS provides that:

Qualifying Criteria

• The employer must hire the foreign worker as a full-time employee;
• There must be a bona fide job opening;
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.