EMPLOYMENT BASED IMMIGRATION
Labor Certification Application

212(a)(5)(A) the Immigration and Nationality Act of 1952 ("Act"), Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. 1182(a)(5)(A).

Copyright 1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

Current immigration law requires that all intending immigrants in the Employment Based Third Preference Category and many intending immigrants in the Employment Based Second Preference category be the beneficiary of an approved labor certification application before an immigrant petition (U.S. INS Form I-140) is filed. The approved Labor Certification Application is evidence that there are no available qualified United States workers to fill the position that the alien will fill as a lawful permanent resident, and that employment of the alien will not adversely affect the wages and working conditions of United States workers in similar positions.

Application Procedure

The labor certification process is administered by the Department of Labor ("DOL"). The DOL requires that the employer complete a heavily monitored recruitment program in an effort to find qualified available United States workers to fill the position. In order to "certify" that there are no qualified United States workers available to fill the position and allow the employer to hire the alien as a lawful permanent resident for the position, the DOL must approve the labor certification application submitted by the employer on Form ETA 750 A & B. The application must include the following information:

If the position is one which is recognized by the Department of Labor as a "shortage position" and the employer can document evidence of "ongoing recruitment normal to the industry" during the six (6) months prior to filing the labor certification application, the DOL will process the application as a "reduction in recruitment" application, accepting the employer's recruitment efforts as adequate. If the employer has not engaged in a sufficient amount of ongoing recruitment during the six (6) months prior to filing the labor certification, the DOL will process the application as a "regular" application. The "regular" process requires that the employer wait for DOL instructions regarding recruitment, and place advertisements in a place and in a form directed by the DOL.

Only after the DOL's approval of the labor certification application can the employer file an immigrant petition (on U.S. INS Form I-140) and only after the approval of the I-140 Petition can the alien file his application for permanent residence (Adjustment of Status or immigrant visa).

For more information about Employment Based Immigration, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.