Who Needs Labor Certification: The Act requires that labor certifications be obtained for persons immigrating under the 2nd (professionals with advanced degrees and persons with exceptional ability) and 3rd (skilled workers, professionals and other workers) employment-based categories.

Concurrent filing of I-140 and I-485

Effective July 31, 2002, INS has published an interim rule allowing the
concurrent filing of I-140 immigrant petitions and I-485 adjustment of
status applications. Under the proposed rule, applications for
employment authorization and advance parole will also be accepted.

LIFE Act : Adjustment of Status Under Revived Section 245(i)

Alien labor certification programs are designed to assure that the admission of aliens to work in this country on a permanent or temporary basis will not adversely affect the job opportunities, wages and working conditions of U.S. workers. With few exceptions, these five programs are jointly administered by the U.S. DOL Employment and Training Administration and the State Employment Security Agencies (SESAs).

The employment-based preferences are as follows:

* The employment-based 1st preference is divided into three categories: aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

* The employment-based 2nd preference is divided into two categories: aliens who are members of the professions holding advanced degrees, or aliens of exceptional ability in the sciences, arts or business.

* The employment-based 3rd preference is divided into three categories: skilled workers, professionals, and other workers.

* The employment-based 4th preference is for religious workers including ministers of religion; professionals working in religious vocations or occupations; and other workers in religious vocations or occupations that work for US nonprofit religious organizations or at nonprofit religious organizations affiliated with qualified religious denominations.

* The employment-based 5th preference (investment visa) is for those aliens who have invested, or are actively investing capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees. The amount of the investment must be at least one million dollars, unless the investment is in a targeted employment area, in which case the investment can be $500,000.

EMPLOYMENT BASED RESIDENCY AND OFFERS OF EMPLOYMENT: There are five (5) immigrant visa categories available to aliens who wish to come to the United States for the principal purpose of employment. These are known as the employment-based 1st, 2nd, 3rd, 4th, and 5th preference categories. This section will discuss the first three of these categories. The 4th employment-based category, religious workers, is discussed later. The 5th employment-based category, permanent resident investors, is also discussed later.

The vast majority of persons obtaining permanent residence in the United States through employment do so in one of the first three employment-based categories. The employment-based 1st preference, also known as the priority worker category, is divided into three groups. Preference category EB1(1) is for aliens with extraordinary ability. This is an alien with a level of expertise showing that the person is one of that small percentage who has risen to the very top of endeavor. The petition filed for an alien of extraordinary ability must be accompanied by proof that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. The regulations set forth the type of documentation that must be submitted as proof of this achievement.

Neither an offer of employment in the United States nor a labor certification is needed for this classification; however, the petition must be accompanied by clear proof that the alien is coming to the United States to continue work in expertise.

Preference category EB1(2) is for those aliens who are outstanding professors and researchers, and who have an offer of employment from a prospective United States employer. A labor certification is not needed for this classification.

A petition for an outstanding professor or researcher must be accompanied by proof that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. The regulations set forth what type of proof must be submitted to meet these criteria. The EB1(3) category is for certain multinational executives and managers. These are persons who have been admitted to the United States to work in, and who are currently working in, managerial or executive positions with the same international corporations or organizations which they were continuously employed as managers or executives outside the United States for at least one out of the three years before they were admitted; and aliens outside the United States who will be engaged in the United States in managerial or executive positions with the same international corporations or organizations which they have been continuously employed as managers or executives outside the United States for at least one of the immediately preceding three years. The terms manager and executive are more thoroughly defined in the regulations. It should be noted that these provisions provide for a waiver of the labor certification requirement. To qualify for this waiver, the US business must have been in operation and doing business for at least one year before the filing of the waiver application. As stated above, no labor certification is needed for this classification; however, the prospective employer in the United States must furnish a job offer as a statement that shows that the alien is to be hired in the United States in a managerial or executive capacity. Such letter must clearly describe the duties to be done by the alien.

The employment-based 2nd preference category(EB2)is for aliens who are members of the professions holding advanced degrees, or aliens of exceptional ability. Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. The United States baccalaureate degree or a foreign equivalent degree followed by at least five (5) years of progressive experience in a specialty occupation shall be considered the equivalent of a master's degree.

Exceptional ability in the sciences, arts, or business means a level of expertise greatly above that ordinarily encountered in the sciences, arts, or business. Profession means one of the occupations listed in Section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. The regulations set forth the type of documentation needed to establish that the alien has the required degree or that the alien is of exceptional ability in the sciences, arts, or business. Every petition under this classification must be accompanied by an individual labor certification from the Department of Labor, or the Immigration Service may exempt the requirement of a job offer, and of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if such an exemption would be in the national interest. To apply for this exemption the alien must submit weighty proof to support the claim that such exemption would be in the national interest.

The employment-based 3rd preference category (EB3) is divided into three areas: skilled workers, professionals, and unskilled workers.

A "skilled worker" means an alien who is capable, at the time of petitioning for the classification, of performing skilled labor (calling for at least two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for this provision.

"Professional" means a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.

"Other worker" (unskilled) means a qualified alien who is capable, at the time of petitioning for the classification, of performing unskilled labor (needing less than two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Every petition under the employment-based 3rd preference category must be accompanied by an individual labor certification from the Department of Labor. In addition, the alien must submit documentation to support his or her claim to the education and /or experience requirements of the labor certification.

NOTE: It is extremely important to try to classify the alien as a skilled, versus an unskilled worker. The approval time for a skilled worker application may take only one to two years, while an unskilled worker application may take ten years for final approval, because of the different waiting lists for each category.

To qualify for a labor certification, the alien needs a US employer who is willing to file an application on his or her behalf. The application is filed with the Labor Department in the area where the alien will be employed. The Labor Department regulations are quite lengthy, and often cumbersome. They require that the employer advertise the position sought in a professional journal, or for a period of three (3) consecutive days in a local newspaper of general circulation. In addition, a notice of the job opportunity must be posted at the employer's place of business, and the job must be listed with the proper office of the state employment service.

The purpose of this recruitment effort is to establish whether there is any US worker qualified and available for the position, and that the wage being offered the alien is the "prevailing wage" for that type of position in that area of the country. If US workers are qualified and available, or if the offered wage is too low, the Department of Labor will not approve the application for a labor certification.

If the application is approved, a labor certification is issued, and the employer may then file a petition with the immigration service to classify the beneficiary in the proper employment category. If the application is denied, the employer may file an appeal to the Board of Alien Labor Certification Appeals in Washington, DC.

Each of the above EB1, EB2, and EB3 petitions must be filed on immigration form I-140, Petition for Immigrant Worker. This must be filed with the Immigration Service Center that has jurisdiction over the alien's intended employment. The documentation needed to be submitted with the petition is outlined in the regulations.

PERMANENT RESIDENT INVESTORS

The employment-based 5th preference category, also known as employment- creation visas, is available to those investors who have invested, or are investing, lawfully obtained capital in a new commercial enterprise employing at least 10 full-time US workers. The amount of the investment must be at least one million dollars, unless the investment is to be in a targeted employment area, in which case the investment need only be five hundred thousand dollars.

To qualify as an immigrant investor, the alien must invest in a new commercial enterprise. This can be done by starting a new business; by purchasing and restructuring a new business; by expanding and substantially changing the net worth or number of employees in a business; or by investing in a troubled business, so that there is a forty percent increase in the net worth or in the number of employees of the business.

Commercial enterprise means any for-profit activity formed for the conduct of lawful business including, but not limited to, a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, if such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for purposes of the Act.

To qualify in the EB5 category, the investment must create full-time employment for at least 10 US citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States. While an investor may employ his family members in the new enterprise, the spouse and children do not count toward the 10-employee minimum. Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. This definition does not include independent contractors. Full- time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.

As stated previously, the investment must be $1 million unless the investment is in what is known as a "targeted area." A "target area" is defined as a rural area or an area that has experienced high unemployment. An area not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more is considered a rural area. The Department of Commerce of each state publishes a list of its targeted areas, and should be contacted in order to obtain a copy.

The actual evidence required to establish the amount and type of investment is quite substantial, and is outlined in great detail in the regulations.

In order to deter investor/employment creation visa fraud, the law provides for a two-year conditional permanent residence status. If, at the end of two years, no fraud is found in the petition process, the conditions will be removed and permanent residence will be granted.

A petition for employment creation aliens is filed on immigration form I- 526, Immigrant Petition for Alien Entrepreneur. This petition must be filed with the immigration service center having jurisdiction over the place of the proposed investment. When the petition is approved, the alien, together with the spouse and unmarried minor children, will file their applications for immigrant visas at a US consulate if they are outside of the United States, or will file for adjustment of status with the Immigration Service if they are in the United States and eligible for adjustment of status.

OTHER METHODS FOR PERMANENT RESIDENCE-- RELIGIOUS WORKERS/VISA LOTTERY/REGISTRY/LULAC/CSS CASES

This section will discuss additional ways of obtaining permanent residence in the United States. One way is under the employment-based 4th preference category (EB4), which is for religious workers. A petition under this preference category may be filed by or for an alien, who (either abroad or in the United States) for at least the two years preceding the filing of the petition has been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States. The alien must be coming to the United States solely for carrying on the vocation of a minister of that religious denomination, working for the organization at the organization's request in a professional capacity in a religious vocation or occupation, or working at a religious vocation or occupation for the organization or a bona fide organization which is affiliated with a religious denomination and is exempt from taxation as an organization described in Section 501(c)(3) of the Internal Revenue Code, at the request of the organization. All three types of religious workers must have been performing the vocation, professional work, or other work continuously (either abroad or in the United States) for at least the two-year period immediately preceding the filing of the petition. (NOTE: Petitions for religious professionals and other religious workers must be filed on or before September 30, 2000.)

A petition for a religious worker is filed on immigration form I-360, and is filed with the immigration service center that has jurisdiction over the area where the alien will be employed. When the petition is approved, the alien, with the spouse and unmarried minor children, can file their applications for immigrant visas with a US consul if they are outside the United States, or they can file for adjustment of status with the immigration service if they are in the United States and are eligible for adjustment of status.

Another method for getting permanent residence is through the diversity, or visa lottery program, also known as the DV-1 program. Each year 55,000 visas are allocated on a random basis to persons who might not otherwise be eligible to obtain permanent residence in the United States. An alien shall be eligible to compete for consideration for visa issuance during a fiscal year only if he or she is a native of a low-admission foreign state, as decided by the Attorney General, for the fiscal year in question; and if he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for a visa, has two years of work experience in an occupation needing at least two years training or experience.

The application process is held once a year. No more than one petition may be submitted by, or for, any alien for consideration during any single fiscal year. If two or more petitions for any single fiscal year are submitted by, or for, any alien, then all such petitions shall be void and the alien shall not be eligible for consideration for visa issuance during the fiscal year in question.

Any alien eligible for consideration shall file his or her petition with the Department of State according to the instructions in the application notice. These instructions can be somewhat complicated and confusing. However, our web site does provide a complete applications package that explains in detail the entire application process including a sample completed application form. We also provide you with detailed instructions on where and when to file the application, as it must be received by the State Department within a very specific time frame. We also provide full instructions on the high school and prior employment requirements.

Registry is a provision in section 249 of the Immigration and Nationality Act. It provides that a person may be granted permanent residence in the United States if he or she can prove that they have resided in this country continuously since before January 1, 1972. Departures from the United States during this time will not prevent permanent residence as long as they are not so lengthy as to be an abandonment of residence.

To qualify for registry, the alien must show that he or she is a person of good moral character, is not inadmissible to the US as a criminal, procurer, subversive, narcotics law violator, or alien smuggler, and must not be ineligible for citizenship. The application is filed on immigration form I-485, with biographic form G-325A, photographs, proper filing fees for the application and fingerprints, and proof that the person has resided continuously in the United States since before 1972. No medical exam is needed.

If the application is approved, the alien is granted lawful permanent residence status from the date of the interview. If the application is denied, the applicant may renew the application for registry in removal proceedings before an immigration judge.

The LULAC and CSS programs: In 1986, the Congress of the United States passed an amnesty law allowing aliens who had resided continuously and illegally in the United States, without interruption since before January 1, 1982, to apply for permanent residence status. However, one of the law's provisions provided that the application had to be filed before November 6, 1988. The immigration service refused to accept applications from those persons who had left the United States before or during the required period, though they had later reentered the United States to again assume an unlawful status in this country. Some of these denied applicants filed suit in federal court seeking the right to file their applications, although the time for filing had by that time passed. The courts in California, in the LULAC and CSS cases, agreed with the aliens, and allowed them to file their applications late. The immigration service has appealed these decisions, and these appeals have gone as high as the US Supreme Court. The Supreme Court sent the cases back to the lower courts for them to consider the issues again. Meanwhile, these aliens have work authorization, and they may get permission to travel outside the United States for emergency reasons, however, they do not have permanent residence status, and their future chance of success looks grim.

The immigration service has filed motions to dismiss these cases, relying on the Supreme Court decision, as well as the recently enacted Immigration Act of 1996, and a decision on these motions is now undecided. If the courts finally reject the aliens' cases, these groups (totaling nearly 400,000 persons) will be left in an unlawful status in the United States. Since their outlook is not good, many legal advocates suggest that they seek some other method of getting lawful status in the United States.