EMPLOYMENT BASED IMMIGRATION
TO THE U.S.

Foreign nationals who are skilled or educated and who have job offers may immigrate to the United States. Employment-based immigration is limited by law to 140,000 persons per year. Generally, the applicant must go through a three-step process:
1) The employer must first obtain a "labor certification" from the U.S.                   Department of Labor (DOL);
2) the employer applies for immigrant visa classification under the employment-based second or third preference; and
3) the foreign national applies for lawful permanent residency or the "green card" through adjustment of status in the United States or consular processing overseas.

LABOR CERTIFICATION
Generally, the employer must obtain "labor certification" from the DOL confirming that there is a lack of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being offered a job. To establish this, the employer must advertise the position and place a notice of the position in the workplace to try to find someone who is a U.S. worker able, willing and qualified to take the job. The employer must offer the position at the prevailing wage, which is the average wage paid to U.S. workers in that position in that locality.

The key to the labor certification process is for the employer to define the true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when first hired. The DOL will not count experience the foreign worker has gained while in the job. Nor can the requirements be tailored to fit the foreign worker's specific skills and qualifications.

A test of the labor market is generally done through a three-day newspaper advertisement, or one day advertisement in a professional or trade journal or publication, and a posting of the job in the workplace. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.

A labor certification is only the first step in the process to obtain permanent residency. Because of cutbacks in budget and loss of personnel from both state and federal labor departments across the country, it may well take more than two years to obtain labor certification. The labor certification process itself does not provide aliens with authorization to remain or work in the United States, unless he or she is in another nonimmigrant visa status that authorizes work, such as an H-1B visa.

Is there a faster way? The labor certification process can be expedited through "Reduction In Recruitment" (RIR). If the employer has already made a good faith effort to recruit U.S. workers for at least six months before the filing of a labor certification application and failed to find a qualified US worker, the DOL may rely on the employer's recruitment efforts and not require recruitment under its supervision. RIR procedures vary from region to region. RIR cases are processed in a number of months as opposed to a few years. Although this new policy sounds beautiful on paper, there has been a lot of resistance to implementing it, and thus many cases with even a great deal of documentation have been denied. This procedure should only be attempted if the employer has conducted consistent recruitment efforts prior to filing the application. The DOL will only be receptive to a RIR request if there is a genuine shortage in the foreign worker's occupation.

Certain occupations are exempt from the labor certification process. Physical therapists and professional nurses are exempt from rigorous labor certification requirements. Labor certifications for college and university teachers and performing artists can also be expedited through a process known as a "Special Handling".

Labor Certification is only required for individuals applying under the employment-based second and third preference categories. Advanced degree professionals and persons of exceptional ability in their fields may be able to avoid the labor certification process if their work is in the national interest of the United States. Additionally, persons of extraordinary ability who are internationally known and are one of a few at the top of their field may also avoid the labor certification process. Religious workers who are coming to the United States solely to perform religious work for a religious organization are not required to go through the labor certification process either.

IMMIGRANT VISA PETITION
Once a labor certification application is approved, it is filed with the U.S. Immigration and Naturalization Service (INS) along with an application for an employment-based visa. These include the following: second preference employment petitions for members of the professions with advanced degrees or the equivalent or aliens of exceptional ability in the sciences, arts or business; third preference employment petitions for professionals, skilled workers (jobs requiring two years or more training or experience); or unskilled workers (jobs requiring less than two years training or experience).

The employment-based second and third preference for professionals and skilled workers are also backlogged for China and India. The third preference is more backlogged than the second preference. It is therefore important, whenever possible, to classify the foreign worker from China or India in the second preference rather than the remaining third preferences. Unskilled workers must wait many years to immigrate.

APPLYING FOR ADJUSTMENT OF STATUS OR CONSULAR PROCESSING.
If the foreign worker is in the United States, he or she may apply for adjustment of status to permanent residency by filing an application with the INS in the United States. The individual's priority date, established at the time of filing the application for labor certification with DOL, should be current at the time of filing this application. The application can remain pending for several months before the INS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek permission to travel and to re-enter the U.S., called "advance parole". If the foreign worker leaves the United States while his or her adjustment application is pending without having obtained advance parole, he or she will have abandoned his or her application. The foreign worker may apply for employment authorization while the adjustment application is pending.

Adjustment of status is only available to individuals who have always maintained lawful status in the United States. However, those whose labor certifications or immigrant visa petitions were filed before January 14, 1998, may adjust their status even if they are now illegal or have overstayed their visas. These individuals must pay a penalty fee of $1000 to adjust to permanent residency. Also, certain employment-based applicants can adjust status if they have not been out of nonimmigrant status for more than a total of 180 days, even if the labor certification was filed after January 14, 1998.

Consular Processing
Foreign nationals who are overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the exemptions must also return to their home country for consular processing. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days are barred from reentering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year are barred from reentering the United States for ten years. There are very limited exceptions to these bars.