EMPLOYMENT BASED GREEN CARDS

Introduction

140,000 immigrant visas (green cards) are set aside each year for employment based  immigrants.

Various categories of employees have been created and are known as 'preference categories of which there are five in total. These categories prioritize the workers who can qualify as employment based immigrants. To view these categories or preferences  click here

In short, and with a few very limited exceptions, a foreign worker must be sponsored by a US based employer who offers the worker a full time job. The foreign worker must obtain labor certification unless he qualifies as a priority worker, that is he is in the first employment based preference, such as for intra company transferees, OR the labor certification requirement is waived in the national interest, that is he obtains a national interest waiver.

Certain professions as such as registered nurses, for which  the US Department of Labor has determined there is a national shortage are considered pre-certified. College professors are also able to benefit form the 'special handling' procedures which effectively exempts them from the labor certification requirement.

The labor certification process

PERMANENT EMPLOYMENT: An application for labor certification must be filed with the Alien Labor Certification (ALC) Section of the Texas Workforce Commission (TWC). The ALC Section processes the application under two preference groups: (1) Professionals with advanced degrees and aliens with exceptional ability; and (2) Skilled Workers, Professionals and Other Workers. Professionals with advanced degrees and aliens with exceptional ability must hold advanced degrees or their equivalent or who, because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy. Skilled Workers, Professionals and other workers include those performing skilled labor requiring at least two years of training; professionals who are qualified workers and hold baccalaureate degrees and who are members of the professions; and Other Workers who are qualified aliens, capable of performing unskilled labor.

BASIC PROCESS: The employer files a labor certification application, which includes details of the job offered and the employees skills and qualifications, with the Alien Certification Unit of the local state workforce Agency (SWA). SWA staff will issue a priority date and review the application. The employer will be notified of any additions or corrections that have to be made to the application. After all corrections are made, the employer will be instructed to place a job advertisement in a newspaper of general circulation for at least three consecutive days, or to place the job advertisement in a professional or cultural publication as appropriate for the occupation. SWA staff will also place a job order with the  local state 'job bank' or equivalent office in the area of intended employment in an effort to recruit U.S. workers. The employer is required to interview all qualified U.S. applicants and if one is available to hire that applicant. The employer can only reject applicants for lawful, job related reasons.

REQUIRED WAGES: The wages paid to foreign workers must be at least the higher of the actual wage rate paid to all other workers with similar experience and qualifications for the specific employment in question or the prevailing wage rate for the occupational classification in the area of employment.

DURATION OF PROCESS

This varies enormously depending on the state where the employee will be working. In high immigrant sates such as California the process has virtually 'ground to a halt'. Because of the inordinate delays inherent to he labor certification system the Reduction of recruitment procedures were introduced and more recently a new regime known as PERM has been proposed and may, at the time of writing ,be on the verge of being introduced.

What are the Reduction in Recruitment (RIR) procedures?

An RIR (Reduction in Recruitment) is the fast track version of the Labor Certification process. A U.S. employer may petition for an RIR if the employer has, during a period of at least six (6) months, attempted to fill the position with reasonable efforts and has failed to find qualified U.S. workers. In essence, the employer is stating that the Labor Certification process is not necessary since the employer has already tested the labor market without success.

If the State Workforce Agency finds that the evidence provided supports that the job recruitment campaign was continuous and a good faith effort was made to fill the position, the State supervised job recruitment campaign is waived and the case is recommended to the Department of Labor (DOL) for expedited review.

The RIR option provides substantial time savings at both the State and DOL level.