The Labor Certification Process 

The process of obtaining Permanent Residence in the United States of America "through an offer of employment" can be broken down into three basic steps:

• Filing an approval of the Labor Certification Application with the Department of Labor;
• Filing, with an approved Labor Certification, the I-140 petition with the Immigration and Naturalization Service;
• Upon approval of the I-140, adjusting status to that of lawful Permanent Resident in the United States of America or processing through the applicable American Embassy or Consulate abroad for Permanent Residence.

I. The Labor Certification Process: 

The first step in obtaining Permanent Residence through employment, is to submit a Labor Certification Application which then establishes a priority date for the alien. This application is made by the employer to the Department of Labor to have the position certified as one for which there is a shortage of U.S. workers. Once the Labor Certification application process has been completed properly, it is then forwarded to the local office of the Department of Labor which reviews the minimum requirements and wage, giving the employer a chance to amend wages, requirements and challenges and oversees employer recruitment. The local office of the Department of Labor then forwards the application on to the regional office which rules on the actual application. 

On the employer section of the Labor Certification application, nine basic criteria must be addressed:

1. Some basic information about the employer's company;
2. A brief description of the job duties for the position being offered;
3. The minimum requirements to satisfactorily perform the job;
4. Any special information needed for unionized and live-at workshops;
5. Details of the recruitment efforts made by the employer, together with the results;
6. The prevailing wage and the ability to pay the prevailing wage to the alien;
7. The ability to place the alien on the payroll before the alien's proposed entry into the United States;
8. Compliance with Federal, State and local laws, including any equal opportunity provisions;

Attestation that the job opportunity is not the subject of a labor dispute involving a work stoppage or a lock-out. The second part of the Labor Certification Application involves the qualifications of the alien. 

The first requirement in completing this section of the Labor Certification application is a job description for the alien applicant, which represents the employer's actual minimum requirements for the job opportunity. In addition, this job opportunity has to be described without unduly restrictive requirements. These minimum requirements are determined by the Department of Labor 's Dictionary of Occupational Titles. 

The second requirement in completing this section is that the offer has to be at the rate of pay which meets the standards of the Department of Labor; the prevailing wage for that position among American workers in the area of intended employment. 

In addition to the above-referenced procedures, it will also be necessary for the employer to post the job offer for a period of ten (10) working days, at a location on it's premises, where employees are likely to see it. This job posting must include the description of the job duties, the minimum requirements of the job, the rate of pay and the work conditions (weekly hours, location, etc.). 

The employer is also required to advertise the position being offered to the alien in a newspaper of general circulation or a specialized professional journal, whichever is more appropriate. 

While this has been a brief introduction to the Labor Certification Application process, I hope it stresses the importance of proceeding carefully and well prepared in order to obtain the desired result under the applicable laws. The process is extremely complicated and lends itself to "pitfalls". 

II. The I-140 Petition: 

Once the Labor Certification application has been approved, the second step in the procedure of obtaining lawful permanent residence, by means of offer of employment, is to file the I-140 Petition with the Immigration and Naturalization Service having jurisdiction over the employer. Once this petition has been filed and is approved, the next step is: 

III. Obtaining Lawful Permanent Residence: 

The final step, is to obtain the aliens permanent residence. Should the alien be in the United States and be in lawful status; the alien is eligible to adjust their status in the United States of America to that of lawful permanent residence. 

Should the alien be located abroad or be located in the United States and have no status, it will be necessary for the alien to travel to the applicable American Embassy or Consulate abroad in which to obtain their permanent residence visa. 

Should there be a back-log in the applicable preference; in other words, should there be insufficient visas available to be issued to the alien in which to obtain their permanent residence, the alien will have to wait until their "priority date" is reached.