Immigrant Visas – Employment-Based Visas – Labor Certification – Job Offers and Portability
Some aliens who wish to immigrate permanently to the United States in employment-based visa categories must obtain labor certifications before they will be issued visas. Specifically, nearly all aliens in the EB-2 and EB-3 categories must obtain these authorizations from the U.S. Secretary of Labor. EB-2 applicants hold advanced degrees or have exceptional abilities, while EB-3 applicants hold bachelor’s degrees or their equivalents, have at least two years’ experience as skilled workers, or work as unskilled laborers in areas for which there are no qualified U.S. workers.
Two issues are central to labor certification applications: the existence of job offers and the portability of the petition for classification.
The job offer requirement for EB-2 and EB-3 immigrants differs. The immigration agency may waive the requirement for EB-2 immigrants, in which case the need for a labor certification is also waived. However, applicants for EB-3 status must always present a job offer on their applications to obtain labor certifications.
An application for labor certification consists of two parts: Part A and Part B. The alien completes Part B, which is a statement of the alien’s qualifications. Part A is completed by a prospective employer and consists of a job offer. If the occupation the alien is listed on Schedule A, a document created by the Secretary that gives blanket certification to certain jobs, documentation establishing that the occupation falls within Schedule A must also be submitted. However, if the position must be individually certified, the individual certification must be endorsed on Part A of the form. Employers must document, on Part A of the application, their ability to pay the aliens’ wages.
As of March 28, 2005, the basic labor certification process is done electronically over the Internet. Once certified, the application is signed by the employer, the alien, and the preparer before it is filed with the immigration authority. The filing date of the application is the date when it is submitted on-line. If the application is mailed, then the filing date is considered the date when the application is date-stamped as accepted.
The applications filed for aliens who wish to immigrate as EB-2 workers must also show either that the jobs they will perform require advanced degrees or that they have exceptional abilities warranting their admission. If an EB-2 applicant requests a waiver of the job offer requirement, he or she must show that the national interest would be served by such waiver.
Labor certification necessarily involves a determination of the effect of alien employment on a job market. However, changes to employer names are generally allowed if a new employer is a true successor in interest to all of the obligations of the former employer. Additionally, the teams for which professional athletes will play are allowed while their immigration petitions are pending.
Also, recent legislation has expanded alien use of labor certifications, allowing job changes while immigration proceedings are pending within the same or similar occupational classification. As a result of this legislation, alien employees are not required to continue to work for the employer that originally petitioned for their status.
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