Posts Tagged ‘permanent residence’

Labor Certification and Permanent Residence

Wednesday, July 17th, 2019 by W. Scott Railton

Immigration is very challenging these days, for numerous reasons. One thing that seems to be working fairly well, with surprisingly favorable timelines, is the Department of Labor’s labor certification system. We are seeing labor certifications adjudicated in a matter of months.  With a labor certification approval, an employer can sponsor an individual for permanent residence. If the visa category is current, which is often the case, permanent residence can be procured in less than a year in some cases. While not overnight, that is relatively fast these days.

The labor certification process requires that the employer test the U.S. labor market to see if there is a minimally qualified, willing, and available U.S. worker for the position.  The recruitment process is largely mandated by regulation, typically involving two Sunday advertisements in a newspaper of general circulation, a state workforce posting for 30 days, a worksite posting, and three other options selected from a list of ten alternatives.  The process is highly regulated, and is fundamentally designed to protect the U.S. labor market. If a minimally qualified worker is identified through recruitment, and is willing and available to take the position, the labor certification process cannot go forward.  However, employers willing to consider this process usually know that this is unlikely, or they wouldn’t be considering this path in the first place.

The whole recruitment process can take three to five months.  These days, the timing is largely dependent on how fast the Department of Labor can provide a prevailing wage determination. (Employers must agree to pay at least the going rate for the position–another labor market protection).  Once filed, the labor certification may be adjudicated in two to three months.  If approved, the employer can then file with the Department of Homeland Security to sponsor the alien worker, and take advantage of the premium processing 15 day adjudication timeline. The final step in the process to green card will either be an adjustment of status application or a consular processing appointment.  Adjustments of status can take over a year right now, but it really varies on location.  Consular processing appointments vary too, but some are taking less than six months.

The labor certification route is something to be considered, for valuable noncitizen employees.  For example, this might be a good path for a STEM employee on optional practical training, where the H-1B lottery has not worked out.  It is also an alternative to some merits-based approaches to permanent residence, which are frequently challenged these days. I have been greatly impressed by how well labor certification works for employers these days, in some cases. It is no secret that there are many sectors experiencing labor shortages. The labor certification process is meant to assist employers when that is the case, while still protecting the U.S. labor market.

 

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