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67 Buck Road, Suite B-55
Huntingdon Valley
PA 19006
Phone: (215) 744-5100 (215) 376-4218
Fax: (215) 525-2220
Email: mjnair@aol.com |
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| LABOR CERTIFICATION FREQUENTLY ASKED QUESTIONS |
1) Three-year Indian degrees
2) Experience Requirements
3) EB-2 or EB-3?
4) Prevailing Wage
5) Employer's Financial Ability
6) Start-Up Companies and Labor Certification
7) Recruitment
8) How Long Does It Take?
9) Priority Dates and Backlogs
10) Immigrant Visa Petition - How Long Does It Take?
11) Waiting for the Priority Date
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1) Three-year Indian degrees
Now-a-days I hear a lot about three-year Indian BS degrees being not good enough. Why not?
To qualify for an immigrant visa under Employment Based third preference category (EB-3) as a "professional", the job requirement is a Bachelor's degree in the field relevant to the job. In the US, this is taken to mean a 4 year degree, i.e., a degree that you get after 16 years of schooling - 12 years to complete High School and then a four-year degree program. To qualify for Employment Based second preference (EB-2) category, the job requirements should be an advanced degree, i.e., a degree higher than the Bachelor's degree.
There are several Indian bachelor's degrees (and a few in other countries as well) that are given after three-year programs, i.e., 12 years of secondary education and 3 year college program. Thousands of computer professionals from India possess this three-year degree and a professional "diploma" in the field of computers/software from a recognized institution of one more years of duration. Accredited evaluating agencies in the US take the three year degree together with the "diploma", combine them, and certify as an equivalency of a US Bachelor's degree. This meets with the requirement for H1B visa (For H1B, even a three-year degree plus three year's experience would also suffice as the missing one year for the equivalency of a US 4-year degree, under the 3-for-1 rule).
Such three years degree plus one year diplomas used to be acceptable to the USCIS for employment-based Immigrant Visa Petitions as well, both EB-3 (Professional) and EB-2 (Advanced degree professional - to meet BS requirement plus five years experience). But lately, USCIS has been rejecting EB-2 and even EB-3 cases where the alien did not have a four-year degree but a combination of three plus one as described above.
Thousands of beneficiaries of labor certifications filed in the past few years face this problem at the Immigrant Visa petition stage. The problem starts with the requirements on the labor certification application where the employer lists a BS degree as the requirements, but the USCIS position is that if you specify a degree you should have that single degree.
Is there a way out for someone with a three-year degree but has a number of years experience in the software field?
Now that we have the benefit of hindsight, it may make sense to start the Labor Certification for a non-professional position with comparable job duties, such as EB-3 skilled worker (which needs only two years experience - no academic requirement at all). Remember, this can be done also with the requirement of an Associate degree.
A lot will depend on how skillfully the job requirements are set, and how the Labor Certification application is filled out including the wording of the so called "magic language".
Having said all the above, in the end, our experience is that it depends on the luck of the employer and the alien. Strange, but true!
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2) Experience Requirements
How does an Employer make sure the job requirements are in line with the Department of Labor (DOL) guidelines?
The job requirements should not exceed those as described in DOL's Standard Occupational Classification (SOC) system. If they exceed the SOC standards, then the employer must justify a "business necessity" for the excessive requirements by showing how the requirements are related and necessary for the position.
Are there any restrictions on using the experience gained while working for the Petitioning Employer?
Such experience can be used if it was gained working in a position not substantially comparable to the position that the Labor Certification is being filed for. The standard for "substantially comparable" is whether at least half of the duties of the two positions are similar.
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3) EB-2 or EB-3?
I have a BS in computer science (four year degree) and five years of experience as a Software Engineer. Do I qualify for EB2 classification?
Qualifying for EB2 classification does NOT depend solely on whether the beneficiary has five years of experience. The main yardstick is whether the job requires that. That is, whether the job for which the Labor Certification is being filed for is that of an "advanced degree professional." Advanced degree means a degree above the professional degree in the field, i.e., a Master's degree. If the job needs a Masters degree (with or without experience) but the employer will accept a Bachelor's degree in the field plus five years of progressive work experience, then the position will qualify for EB2.
What is progressive experience? How to document it?
The alien should have gone from lesser level of responsibilities to higher levels. This can be documented with experience letters in a certain format.
Other than the requirements of an advance degree (or BS plus five years of experience}, what other factors are important when an employer attempts to file for an EB2 position?
If the job position needs an advanced degree (or equivalent as explained above) the salary offered also needs to be proportionately higher. Further, if the job requirements (i.e., the educational and experience requirements) are not normal to the industry and the job, there could be an audit from the Department of Labor to justify business necessity.
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4) Prevailing Wage
Can the Employer offer any salary that is reasonable?
No. The Employer must obtain a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA). The SWA gives the PWD based on the DOL's Online Wage Library as appropriate for the Employer's job requirements. The Employer also can use a salary survey that meets with certain requirements. Also, the Employer must offer 100 percent of the prevailing wage.
I am getting a salary that is below the prevailing wage for an EB2 position. Will my employer still be able to file my EB2 Labor Certification?
Please remember that the Labor Certification is for "future employment", i.e. the beneficiary should be paid the "offered" wages when he/she actually gets the "Green Card" (legal permanent status in the US) or an Employment Authorization based on the Adjustment of Status application consequent to the Labor Certification in question. Depending on the country of the birth of the beneficiary and current processing times, this could take several years. The salary offered should be paid when the alien gets the Green Card (or starts working using the EAD granted in conjunction with filing for Adjustment of Status).
What if the Employer thinks the Prevailing Wage is too high?
The Employer can try to persuade SWA by giving additional information or changing the requirements. The Employer can also file a new prevailing wage request. As a last resort (which may be a time-consuming process), the Employer can appeal to the Board of Alien Labor Certification Appeals (BALCA).
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5) Employer's Financial Ability
Does the Employer need to prove any financial ability at the time of filing the Labor Certification?
The Employer should have the ability to pay the proffered wage as of the date of filing the Labor Certification. This should be proven at the Immigrant Petition stage, i.e., the Employer should prove at the Immigrant Petition stage that they had the ability to pay the proffered wage as of the date of filing the Labor Certification, and continue to have such ability.
What kind of financial status should the employer have?
The employer should be able to document the ability to pay the offered wage from the date of filing of the Labor Certification application. This documentation is usually required at the time of filing the Immigrant Visa Petition. Of course, the employer is not required to pay the offered salary until the alien gets the "Green Card" or the EAD as explained above, but the employer should have the ability to pay the proffered wages. If the alien is presently working for the employer (say, on H1B visa), the salary the employer pays can definitely be taken into account while documenting employer's ability to pay the proffered wages. If there is any shortfall, then the employer should have enough profits to cover it. If the alien is not working for the employer, then the employer should have enough profits, or other acceptable assets, to cover the alien's entire salary. Nowadays, USCIS also asks employers to prove the ability to pay not only the alien in question, but also to the beneficiaries of ALL other pending Immigrant Visa Petitions filed by the employer. If the profit figures are not enough, then other financial documentation such as audited financial statements, bank statements, other evidence, etc. can be submitted.
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6) Start-Up Companies and Labor Certification
Can a start-up Company file a Labor Certification application for one of its employees?
Yes, a start-up Company can file Labor Certification applications for its employees so long as the Company is able to meet the financial requirements. See the answer above for more information.
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7) Recruitment
What kind of recruitment documentation must be prepared and submitted to DOL?
There is no need to submit any recruitment documentation to DOL at all. But the Employer must document the recruitment effort undertaken. The Employer should prepare a recruitment report that includes details of the people interviewed; lawful, job related reasons for rejection of applicants; details of people hired, if any; etc. The recruitment report should be kept by the employer, along with tear sheets of print ads, printout of websites, job notice, certification, Job Order placed with state job offices, etc., for a period of five years from the date of filing the Labor Certification application.
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8) How Long Does It Take?
How long does it take to file an Application for Labor Certification for a professional job position under PERM, if I hire an attorney today?
It takes at least about three months. Here is why: First of all, the attorney needs to gather all required information from the beneficiary and the employer. Then a job description appropriate for the position has to be finalized. This needs to be submitted to the State Job Office for a prevailing wage determination. States take a few days to a few weeks to give a prevailing wage determination. The recruitment process has to start after the prevailing wage is obtained. There is a requirement of 30-day posting period with the state job office. Usually all other required recruitment steps could also be completed during this one month period. From the date of the last advertisement (or the last day of the job notice posting, whichever comes later), there is a 30-day waiting period. The Application can be filed only after this waiting period is over.
How long does it take to get the Certification from the Department of Labor?
It is difficult to predict. Our experience has been two days (yes, two days!) to six months. If there is an audit, this could be substantially longer.
After the Labor Certification is granted, how much time do I have to apply for the Immigrant Visa Petition?
Approved Labor Certifications used to be valid indefinitely. But starting from July 17, 2007, the requirement is that an Immigrant Visa Petition should be filed within 180 days of the date of Labor Certification is certified.
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9) Priority Dates and Backlogs
How does "Priority Date" relate to the Labor Certification process?
Priority date is the date your Labor Certification application is filed with the Department of Labor. This becomes significant when you apply for the Adjustment of Status or go for Consular Processing, which can be done only when the Priority Date becomes current.
It is confusing. Can you explain?
Let us say you are born in India, and your Application for Labor Certification is filed in EB3 category on December 15, 2007. December 15, 2007 is your priority date no matter how long it takes to get the Labor Certification certified. Let us say it gets certified in March 2008. If the priority date for India is "Current" for the month of March 2008 and if you are physically present in the US on a valid non-immigrant status at that time, you can do "concurrent" filing of your Immigrant Visa Petition and Adjustment of Status in March 2008. If the priority date is not "Current", only the Immigrant Visa Petition can be filed.
To see if the priority date is current for your country of birth, you have to consult the Visa Bulletin which is published by the middle of every month by the US Department of State. For example, the October 2007 Visa Bulletin has priority dates for India as follows: for EB2 it is April 1, 2004 and for EB3 it is April 22, 2001. This means, in the month of October 2007, EB-3 persons whose Labor Cert was filed before April 22, 2001 and EB2s whose Labor Certifications were filed before April 1, 2004 are eligible to get a visa number in October 2007. Consequently, only people who meet these requirements are eligible for "concurrent" filing of Immigrant Visa Petition and Adjustment of Status in October 2007.
If you do not qualify for "Concurrent" filing as above, your Employer can still file the Immigrant Visa Petition based on your Labor Certification.
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10) Immigrant Visa Petition - How long does it take?
How long does it take to get the Immigrant Visa Petition approved?
It takes several months. Please see the processing times published monthly by USICS.
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11) Waiting for the Priority Date
Okay, now I have my Immigrant Visa Petition is approved, but the current priority date for my country is at least five years in the past. Does it mean I have to wait for five years to be able to file my Adjustment of Status?
It is not that easy to predict. The priority dates do not necessary move at the same speed as the calendar. You need to keep watching the Visa Bulletin to see how they move.
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Disclaimer
The information on this website is of a general nature only and should not be taken as professional legal advice.
Always seek legal advice before proceeding with your case.
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