When a US company wishes to hire foreign, workers with non-immigrant status temporarily, they may elect to use an H-1B visa, an L-1 visa or other options that are available to them. However, if a business wants to hire a foreign worker permanently, they must first go through a process called labor certification. Basically, this process requires the employer to prove they are unable to find US residents who are capable of doing the job. This is the first step in the process of getting US permanent residency or “green card.”
It is important to understand that the Department of Labor defines “qualified” as someone who can fulfill the minimum requirements for the position. If a US resident has the minimum requirements to fill the position, a company cannot offer the position to a foreign worker.
The controversy of labor certification
The stated goal of labor certification is “to protect US workers and the US labor market by ensuring foreign workers seeking immigrant visa classification are not displacing equally qualified US workers.” It is however a controversial system, since the procedures force US employers to represent minimum requirements which are then reviewed by the Department of Labor. These requirements are then matched up with the Code of Federal Regulations and the employer must also prove they have not hired workers who have less experience than what they are requesting for the open position. Others argue that labor certification forces ;employers to offer long-term employment to workers who are on a temporary visa and then adjust the job description to allow this person to remain in the position.
Your visa and labor certification
If you are currently working on a long-term visa and your employer is offering you a permanent job, the job must first be evaluated by the Department of Labor and may potentially be offered to a US resident. For you, this may mean you may continue working until such time as your visa expires. A labor certification that has been pending for over a year will provide you with a basis to extend you working visa beyond the maximum period.
With the new system put into place in 2005, known as PERM (Program Electronic Review Management), approvals are expected to be more streamlined. If you are in the midst of a labor certification for a job you are working, you should consider contacting Lubiner, Schmidt & Palumbo LLC for help. We can help you with the necessary visa applications and help you determine what you will need to do to remain in the United States legally.