Law Office of Baoqin Wang
I. Information and Documents from Employer
1. Legal name:________________________
2. Address:___________________________
County __________, City____________,
State and Zip Code ________________
Is this address the same as the alien's work location?
Yes: ___ No: ___
If No, provide the alien's work location below:
3. Federal tax ID number:_____________________________
4. NAICS(North American Industry Classification System) Number: ____________________
5. Telephone:_________________ Fax:_____________________
6. The person who is going to sign H1B petition on behalf of the employer:
Name:_______________________
Title:________________________
Email: _______________________
7. Job title being offered:__________________
8. Estimated job starting date: ______________
9. Is this a full time or part time job? ______________
10. Salary_____________________
11. Job requirement and description (in details):
12. Scope of the business (basic introduction, pamphlet, or web site address):
13. Gross annual income: $ (estimated if new company):_______________
14. Net annual income: $ (estimated if new company):________________
15. Number of employees:__________________
16. Number of H1B employees with the company:_______________
17. In which year is the company established?_______________
18. A Copy of Employment Agreement and Job Offer Letter to the employee.
19. For consulting firms, please provide evidence to show you have enough work for the employee to do. Such documents can be work orders, valid contract, employment agreement, etc.
20. A copy of the company's most recent tax returns with all schedules and statements.
21. Evidence of actual work assignments, such as technical documentation, marketing analysis, cost-benefit analysis, brochures and funding documents.
22. Photos of the company and the employee's work space.
23. Please provide your company's letterhead stationary (10 pages) for printing support letters.
II. Information and Documents from Employee
a. Information about Employee Applicant
1. Family name:_________ Given name: ___________
2. Date of birth: _____________, Country of birth: _____________
3. Social security number:_____________________________
4. Date of most recent arrival (month/day/year): ______________
5. I-94#: ________________
6. Current nonimmigrant status: _________________
7. Address at home country:___________________________
8. Current Home address:_________________________
9. Phone (Home): _______________Phone (Work):________________
b. Document Required From Employee Applicant
1. Copies of all educational degrees and transcripts
2. Current Detailed Resume
3. Copies of employee's passport (identification pages and pages with U.S. visa stamp).
4. Copy of form I-94 (front and back side)
5. Copy of all forms I-20, front and back (if applicable)
6. Copy of all other previous work authorization approval notices (H1, L1, J1, EAD, etc.)
III. Information and Documents from Employee's Family Member (if applying as H4 dependent)
The INS Office of Business Liaison had recently issued an updated information bulletin on the H-1B specialty workers. We have selected and summarized some topics that may be most interesting to H-1B workers. This information is being provided for general educational purposes only and is not intended to be a substitute for actual legal advice. If you have specific questions or need legal advice, you can contact Law Office of Baoqin Wang directly.
H-1B Workers: Important H-1B Laws You Should Know
Source: INS Information Bulletin 7: H-1B Specialty Workers (5/01)
1. Duration of H-1b employment
Approved H-1b beneficiaries are initially admitted to the US for the requested period of employment or a maximum of 3 years. Status is extendible up to a total employment period of 6 years.
2. Readmission under H-1b classification following maximum period of employment
Following employment under H-1b classification for the maximum 6-year time period, alien beneficiary must remain outside the US for at least one year to re-qualify as beneficiary of a new H-1b petition. A US employer may not file a new petition on behalf of the beneficiary until this one year requirement has been completed.
3. Payment of H-1b workers
H-1b employers are required to pay wages indicated under Labor Condition Application (LCA wages) 30 days from H-1b admission into the US. If an alien changes status to H-1b within the US, the LCA wages must commence no later than 60 days following the effective date of change of status. Once this 30/60-day window closes, employer must begin paying wages. Note: employer�s wage obligation begins before 30/60-day window closes if the beneficiary is available for work. If an employee reports to work before the 30/60-day period ends, the employment relationship begins at that time.
4. H-1b dependents
Qualifying family members (including spouses and unmarried children under 21) may not be employed under H-4 classification. Their status terminates when and if the status of the H-1b principal terminates (even if their Forms I-94 have not yet expired).
5. Travel
An unexpired visa is required in order for non visa-exempt H-1b or H-4 aliens who travel abroad to be re-admitted to the US. Aliens approved for change of status do not need visas until they travel outside the US. Aliens who travel while change of status requests are pending are deemed to abandon the petitions. Aliens approved for extension of stay must renew visas, since visa duration typically matches H-1b approval period. Aliens who travel while extension of stay requests are pending cannot renew visas until INS approves extensions.
6. H-1b status terminates with H-1b employment
H-1b status is tied to the approved employment. As long as employment is maintained, an H-1b beneficiary remains "in status". This includes vacation or sick/family leave, strikes, or other inactive status provided that the employer-employee relationship persists in the same way for H-1b aliens as for US workers under the same conditions.
7. Distinction between lapse of status and unlawful presence
Lapse of Status
An alien who violates terms and conditions of his/her approved nonimmigrant classification loses that status. For example, since H-1b status derives from the approved employment, an H-1b alien loses status if and when the approved employment ends. If this happens before a new petition for extension of stay, change of approved employment, change of status, or adjustment of status has been filed, the alien will likely be ineligible for approval since he/she no longer has a current status or current employment from which to change. This is true without regard to the expiration date indicated on his/her Form I-94 Arrival-Departure Record.To determine whether the named beneficiary is in status, INS Service Centers require current pay stubs and/or other documentation up until the date of filing of a new petition, reflecting that the approved employment (and lawful H-1b status) have been maintained. In cases where this cannot be provided, change or extension will likely be denied.
Unlawful Presence
Lapse of status may subject the alien to deportation, if discovered. In addition, a lapse of status will likely cause a petition for an immigration benefit such as change of status, adjustment of status, or change in H-1b employment to be denied. For example, if an H-1b terminates the approved employment voluntarily or involuntarily and is unable to supply proof that he/she has maintained status by submitting pay stubs from the approved employer up until the date of filing, the request for the benefit will be denied even if the employer's petition is approved on its merits. In such case, not only will the petition be considered as a petition for new employment, require the alien to leave the US in order to obtain a new visa (if required) and a new Form I-94 upon readmission to the US, but the finding of lapsed status by the INS adjudicator will cause unlawful presence to accumulate as of the date of the denial. Alternatively, if an alien overstays past his I-94 expiration date, the alien's visa is automatically canceled and the alien begins to accrue unlawful presence as of the expiration date. The only other time that unlawful presence begins to accrue is after an immigration judge makes a determination of breach of status.
An automatically canceled visa restricts issuance of a subsequent visa to the US consulate in the alien's home country. Third country processing (such as in Canada for non-Canadians or Mexico for non-Mexicans) is not permitted in such cases.
IMPORTANT! However unlawful presence occurs, an alien who accrues more than 180 days of unlawful presence will be barred from re-admission to the US for three years if he/she leaves the US. Accrual of 360 or more days of unlawful presence bars the alien from readmission to the US for ten years.
8. Obligations of all H-1b employers under the law
(1) To offer benefits to H-1b workers on the same basis as offered to their US workers. Benefits include the opportunity to participate in health, life, disability and other insurance plans, the opportunity to participate in retirement and savings plans, and cash bonuses and noncash compensation such as stock options;
(2) To pay full wages to any H-1b worker placed in nonproductive status ("bench time") by the employer unless it results from the H-1b worker's voluntary request or conditions unrelated to employment and the period does not require compensation under the employer's benefit plan or under other statutes;
(3) Not to permit an H-1b worker to pay H-1b filing fees, attorney fees and/or other costs of H-1b processing unless, when deducted from the employee's wage, the residual wage would meet LCA requirements;
(4) Not to impose a penalty via payroll deduction for an H-1b employee's voluntary termination of employment before an agreed upon date (although collection of liquidated damages pursuant to an agreement between H-1b employee and employer may be upheld);
(5) Return transportation obligation: Employers who terminate H-1b beneficiaries prior to the end of the approved period of employment are required to pay transportation costs of returning H-1b workers to their last place of foreign residence. However, employers do not have this obligation if the H-1b worker voluntarily terminates employment prior to the end of the approved employment period;
9. Exceptions to maximum H-1b stay of six years
Though an H-1B holder's total stay in the US is limited to six years, there are some exceptions to this rule:(1) Per country limitation: Where per country limitations cause a delay in an alien's adjustment of status application, an H-1b alien may extend H-1b status past six years until an immigrant visa is available and application for adjustment is filed and approved.(2) Lengthy adjudication process: H-1b beneficiaries of filed employment based I-140 (Immigrant Petition for Alien Worker) petitions may extend H-1b stay through application for and approval of adjustment, for one year at a time, in cases where the supporting labor certification has been pending for over 365 days.
10. H-1b Visa Portability
An alien previously granted H-1b status may accept new H-1b employment provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) naming that alien as beneficiary and that the alien beneficiary has not accumulated unlawful presence in the US. In cases where H-1b petitions are denied following commencement of employment under these provisions, employment authorization of the H-1b alien ceases upon denial.
Although this law went into effect on October 16, 2000, INS has not yet formally interpreted the provisions or published implementing regulations. As a result, H-1b employers and aliens should proceed cautiously. As of today, it is clear that aliens with I-94 Arrival-Departure Records indicating unexpired H-1b classification may use this documentation as evidence of employment authorization for a new H-1b employer that has filed an H-1b petition and received a receipt from INS. Aliens who travel during the portability period should carry with them copies of the filed petition, the receipt issued to the employer, and the unexpired Form I-94 relinquished upon departure from the US, as well as the unexpired foreign passport and H-1b visa. Such aliens whose H-1b visas have expired are advised not to travel prior to approval of the new H-1b petition, since they will not have the documentation required to support renewal of their H-1b visas.
11. H-1b status during adjustment of status
H-1b alien beneficiaries of approved petitions for permanent residence may choose to work and travel as adjustees, using an employment authorization document (EAD) and advance parole for which they may apply, or to continue to work and travel under unexpired H-1b classification.
Work and travel authorization should correspond. An alien who works under an adjustment-based EAD should travel under advance parole. An alien who works under a Form I-94 reflecting unexpired H-1b classification should travel using an H-1b visa and obtain a Form I-94 that reflects H-1b status upon readmission to the US.
12. Adjustment portability
Adjustment of status applicants whose I-485 applications have been pending for over 180 days may change positions within the same company or change employers, within the same or similar occupational classification, without invalidating the underlying labor certification or I-140 petition.
Immigration Guide for Students Entering the U.S. Workforce
By Baoqin Wang, (c) 2000
The Law Office of Baoqin Wang is pleased to provide this practical guide to immigration questions for foreign students attending school in the United States. If you need specific legal advice, you can contact us about our services by sending email to immigration@askwang.com.
This information is being provided for general educational purposes only and is not intended to be a substitute for actual legal advice. The Law Office of Baoqin Wang makes no warranties as to the accuracy of this information, and no attorney-client relationship is created by the use of this information by visitors to this website. This information is subject to change at any time.
Here are the immigration procedures you may have to go through if you want to work in the U.S. after completion of your study:
1. Optional Practical Training.
Optional practical training (OPT) is permissible when the student is in a bachelor's, master's, or doctoral program and has completed all course requirements for the degree (excluding a thesis or its equivalent). OPT gives an F-1 student the employment authorization to work in the U.S. in his or her field of study. Forms and application procedures to qualify for OPT are available at most American universities. Here are the key features of OPT:
2. H-1B Specialty Occupation (Professionals) Visas
OPT only allows a student to work in the U.S. for a maximum of 12 months. If you wish to continue working in the U.S. after the expiration of your OPT period, you need to change your immigration status to get permission to continue working in the U.S. The most common way for a college graduate to work in the U.S. is to change to H-1B status. Here are the key features of the H-1B class visa:
3. Applying for Permanent Residence (Green Card)
Many people apply for lawful permanent residence (green card) status during their stay under an H-1B visa, and the most common way for H-1B holders to apply for a green card is through employment based immigration petition. The three most common categories for college graduates to apply for green card are listed as follows:
A. Foreign Nationals of Extraordinary Ability, Outstanding Professors and Researchers and Multinational Executives and Managers (EB-1).
Individuals in this category can petition for permanent residency without having to go through the time consuming labor certification process. For those talented individuals who are simply one of the best in their field of art, science, education, business, or athletics, they can petition immigrant visa themselves as "extraordinary ability alien" without a job offer. For individuals who want to apply under "outstanding professors and researchers" or "multinational executive and managers," their employer must file the petition on their behalf.
B. Workers with Advanced Degrees or Exceptional Ability in the Sciences, Arts or Business (EB-2)
This is the most common way for college graduates to realize their green card dream. Petitions under this category normally must have a job offer and the potential employer must complete the labor certification process. The job offered must require an advanced degree (master or above) for the worker.
The labor certification process involves another branch of the U.S. government, the Department of Labor (DOL), that must certify that the foreign worker will not displace nor adversely affect the wages and working conditions of U.S. workers similarly employed. Labor certification for the EB-2 visa is a complex, lengthy undertaking and usually takes several years to finish. The processing time of labor certification can be reduced if the employer has already made sufficient attempts to recruit U.S. workers and files a "fast track" request.
Once the labor certification is approved, the employer may file an immigrant petition (I-140) for the foreign worker. An exception to the job offer and labor certification requirements under this category is the "national interest" waiver. This means that if an individual can show that his or her entry into the U.S. is in the national interest, then the job offer and labor certification requirements can be waived. A national interest waiver is strictly construed by the INS and usually is not an option for the average foreign worker.
C. Skilled Workers and Professionals (EB-3)
Petitions under this category normally must have a job offer and the potential employer must complete the labor certification process. The application process under EB-3 is basically the same as EB-2 application except the job offered usually requires a bachelor's degree be held by the worker.
It is worth noticing that all the petitions for permanent residence are subject to annual quotas. The worldwide level for annual employment-based preference immigrants is at least 140,000 under the Immigration and Nationality Act (INA). The employment-based preference visas are issued to eligible immigrants in the order in which a petition has been filed. Time is always of essence here!
Naturalization is the way immigrants become citizens of the United States. If you were not born a citizen, you must naturalize to become one.
There are some rights the Constitution gives only to citizens, like the right to vote. When you are naturalized, you will be given the right to vote.
Having a U.S. passport is another benefit of citizenship. A U.S. passport allows citizens the freedom to travel. As a U.S. citizen, one can exit and enter the U.S. without any regard to time spent out of the U.S. (unlike a permanent resident who must be careful not to abandon his status by leaving the U.S. for an extended period of time). In addition, citizens receive U.S. government protection and assistance when abroad.
Finally, A U.S. citizen can petition for the U.S. permanent residence for certain alien relatives that cannot be petitioned by a permanent resident.
1. Time as Permanent Resident
Most applicants must be a permanent resident for a certain number of years before they may apply for naturalization. Usually one must be a permanent resident for 5 years to be eligible for naturalization.
Exception: if you are currently married to and living with a U.S. citizen AND have been married to and living with that same U.S. citizen for the past 3 years, AND your spouse has been a U.S. citizen for the past 3 years, then you only need to be a permanent residence for 3 years to be eligible for naturalization.
It is not enough to be a permanent resident for the right number of years. You must also be in "continuous residence" during that time.
"Continuous residence means that you have not left the United States for a long period of time. If you leave the United States for too long, you may interrupt your continuous residence.
Absences between 6 and 12 months. If you leave the United States for more than 6 months, but less than 1 year, then you have disrupted your continuous residence unless you can prove otherwise. To prove that you have not disrupted your "continuous residence," you will need to seek competent assistance.
Absences of 1 year or longer. If you leave the United States for 1 year or more, you have disrupted your continuous residence. This is true even if you have a Re-entry Permit. If you leave the United States for 1 year or longer, none of the time you were in the United States before you left the country counts toward your time in continuous residence.
There are a few small groups of people who can leave the country for over 1 year and not disrupt their "continuous residence." These people must follo
w complicated rules and file an application with INS to preserve residence for naturalization purposes.
2. Physical Presence in the United States
"Physical presence" means that you have actually been in the United States. Most applicants must be physically present in the United States for 30 months to be eligible for naturalization. For people who married a U.S. citizen, physical presence requirement is 18 months.
"Physical presence" differs from "continuous residence" in that physical presence involves the total number of days you were outside the United States on all of your trips. Even if you never took a trip that was more than 6 months to disrupt your continuous residence, you may have taken so many short trips that you do not meet the physical presence requirement.
When counting the total number of days you have been out of the country, you should include all trips you have taken outside the United States. This includes short trips and trips to Canada and Mexico.
3. Time as a Resident in District or State
Applicants must live in the district or state in which they are filing the application for at least 3 months before applying for naturalization.
4. Good Moral Character
This requirement must be met by all aliens seeking naturalization. If an alien has a criminal conviction of any type, particularly one for which he or she has been confined in prison for six months or more, he or she is unlikely to be considered a person of good moral character, and should seek competent assistance.Here are some examples of things that might show a lack of good moral character:
(1) Any crime against a person with intent to harm;
(2) Any crime against property or the Government that involves "fraud" or evil intent;
(3) Two or more crimes for which the aggregate sentence was 5 years or more;
(4) Violating any controlled substance law of the U.S., any state, or any foreign country;(5) Habitual drunkenness or drunk driving;(6) Illegal gambling;
(7) Prostitution;
(8) Polygamy;
(9) Lying to gain immigration benefits;
(10) Failing to pay court-ordered child support or alimony payments;
(11) Failing to complete any probation, parole, or suspended sentence;
(12) Persecution of anyone because of race, religion, national origin, political opinion, or social group;
(13) Confinement in jail, prison, or similar institution for which the total confinement was 180 days or more during the past 5 years (or 3 years if applying based on marriage to a U.S. citizen).
5. English and Civics
To be eligible for naturalization, you must be able to read, write, and speak basic English. You must also have a basic knowledge of U.S. history and Government.Certain applicants, because of age or disability, have different English and civics requirements.
(1) People over 50 and have lived in the U.S. as a permanent resident for 20 years don't have to take the English test. They may take the civics test in their native language;
(2) People over 55 and have lived in the U.S. as a permanent resident for 15 years don't have to take the English test. They may take the civics test in their native language;
(3) People over 65 and have lived in the U.S. as a permanent resident for 20 years don't have to take the English test. They may take a simpler version of the civics test in their native language;
(4) people with developmental disability or mental or physical impairment may be exempt from the English and civics requirements.
6. Attachment to the Constitution
All applicants for naturalization must be willing to support and defend the U.S. and the Constitution.
1. Completing Your Application and Getting Photographed
If you meet the naturalization requirements, you can start your naturalization process. First, you must fill out N-400 completely. Then, you should get two photographs taken and include them with your application. Collect all the necessary documents that are required by N-400 form. Send your application, documents, and fee directly to the Service Center that serves your area.
You may file for naturalization up to 3 months before you have met the "continuous residence" requirement.
2. Getting Fingerprinted
Once you have filed your application with INS, you will receive a letter from INS telling you where and when to have your fingerprints taken. Follow the direction and get your fingerprints taken.
Sometimes INS may need additional documents from you before scheduling your interview. In this case, provide the required information to INS timely.
3. Being Interviewed
Once everything is ready, INS will schedule you for an interview by sending you an interview notice. You should appear for the interview at the place and time indicated on the interview notice.
During the interview, your ability to read, write, and speak English will be tested (unless you are exempt from the English requirements). You will also be given a civics test (unless you are exempt).
4. Taking the Oath
If INS approves your application for naturalization, you must attend a ceremony and take the Oath of Allegiance to the United States. INS will notify you by mail for the time and date of your ceremony. In some cases, INS may give you the option to take the Oath on the same day as your interview.
Once you take the Oath, you will receive your Certificate of Naturalization. You may use this document as proof that you are a U.S. citizen. You can also obtain a U.S. passport soon after the naturalization ceremony.
Q: How can I become a United States citizen?
A: A person may become a U.S. citizen (1) by birth or (2) through naturalization.
Q: When does my time as a Permanent Resident begin?
A: Your time as a Permanent Resident begins on the date you were granted permanent resident status. This date is on your Permanent Resident Card (formerly known as Alien Registration Card).
Q: If I have been convicted of a crime but my record has been expunged, do I need to indicate that on my application or tell an INS officer?
A: Yes. You should always be honest with INS regarding all: arrests; convictions (even if they have been expunged); and crimes you have committed for which you were not arrested or convicted.Even if you have committed a minor crime, INS may deny your application if you do not tell the INS officer about the incident.
Q: How long will it take to become naturalized?
A: The time it takes to be naturalized varies form one local office to another. In many places, it took over 2 years to process an application. INS is currently modernizing and improving the naturalization process so to decrease the time it takes to become naturalized to 6 months.
Q: Where can I be fingerprinted?
A: After INS has received your application, you will be notified of the location where you should get fingerprint.
Q: How do I determine the status of my naturalization?
A: You may call the Service Center where you sent your application.Q: What if I cannot make it to my scheduled interview?A: It is very important not to miss your interview. If you have to miss your interview, you should notify the office where your interview is scheduled by mail as soon as possible. Rescheduling an interview may add several months to the naturalization process. If you miss your scheduled interview without notifying INS, your case will be "administratively closed". Unless you contact INS to schedule a new interview within 1 year after INS close your case, INS will deny your application.
Q: What do I do if my address has changed?
A: If your address changes, you should complete the "Alien's Change of Address Card" (From AR11) and send it back to INS.It is important to make sure INS has your latest address. If INS Does not have a current address for you, you may not receive important information. For example, INS may not be able to notify you of your interview date and time. INS also may not be able to tell you if you need to send or bring additional documents to your interview.
Q: If INS grants me naturalization, when will I become a citizen?
A: You become a citizen as soon as you take the Oath of Allegiance to the United States. I some places, you can choose to take the Oath the same day as your interview. If that option is not available or if you prefer to ceremony at a later date, INS will notify you of the ceremony date.
Q: What should I do if I cannot go to my oath ceremony?
A: If you cannot go to the oath ceremony, you should return the "Notice of Naturalization Oath Ceremony" (Form N-445)( that INS sent to you. Include a letter saying why you cannot go to the ceremony. Your local office will reschedule you a new ceremony.
Q: What can I do if INS denies my application?
A: If you feel that you have been wrongly denied naturalization, you may request a hearing with an immigration officer.In many cases, you may reapply for naturalization. The denial letter should indicate the date you may reapply for citizenship. If you reapply, you will need to resubmit a new N-400 and pay the fee again. You will also need to have your fingerprints and photographs taken again.
Q: What do I do if I have lost my Certificate of Naturalization? What do I use as proof of citizenship if I do not have my certificate?
A: You may apply for a new Certificate of Naturalization by submitting Form N-565 to INS. It may take up to 1 year for you to receive a new certificate. You may use your passport as evidence of citizenship while you wait for a replacement certificate.
Q: Do I need to obtain a new Permanent Resident Card when INS issues a new version of the card?
A: No, you only need to renew your Permanent Resident Card when it expires.
Following is a summary of the process and the average time required to complete a PERM based immigration petition. DOL refers to U.S. Department of Labor. CIS refers to U.S. Citizenship & Immigration Services.
Step 1: Employer files the PERM petition with the DOL. The purpose of the PERM filing is to request DOL certify that there are no qualified U.S. workers available for the position. (3-9 months)
Step 2:
Employer files the Immigration Petition (I-140 filing) with the CIS. The purpose of the I-140 filing is to show that Employer has offered a full-time permanen
t job to the foreign national, and the foreign national qualifies for the job. (2-8 months)
Step 3:
Foreign national files Adjustment of Status Application (I-485 filing) with the CIS. The purpose of the I-485 filing is to adjust foreign national's status from non-immigrant (temporary) visa to immigrant (permanent) visa. (6-24 months)Family members of the foreign national can do the I-485 filing as dependents. Anyone who has an I-485 pending can also apply for work permit (I-765 filing) and travel permit (I-131 filing). With CIS approved work permit and travel permit, foreign nationals can work in the U.S. and travel abroad and re-enter U.S.
There is a numerical limitation (annual visa number) for employment-based immigration application. Currently, there is a severe retrogression in third employment-based visa application - for a position that requires less than a master’s degree, the foreign national usually has to wait for 2-3 years before they can do the I-485 filing (when a visa number is available).
This summary is to explain the process, the parties involved, and the average time required to complete the filing of the PERM labor certification for a professional position (i.e., a position which requires a bachelor's degree or above). SWA refers to State Workforce Agency. DOL refers to Department of Labor. The following steps will take place, generally in chronological order:
1. Employer and employee fill out the PERM questionnaire and send to Attorney.
2. Attorney submits a prevailing wage request on behalf of Employer with the SWA. This wage determined by SWA must be used for the PERM application. (1-2 weeks)
3. Attorney will arrange the advertising and recruitment process to prove that there is no qualified US worker available for the position offered to foreign employee. The following advertisements must be placed: (2-3 months)
(1) Place a job order with the SWA for a period of 30 days.
(2) Post two advertisements on two different Sundays in the general circulated newspaper, OR post one advertisement on the Sunday newspaper and one on a professional journal.
(3) Post notice of the job opportunity for 10 consecutive business days at Employer's worksite.
(4) Use other in-house media in accordance with normal procedures used for recruitment for similar position in the company (such as intranet).
(5) If Employer has had a layoff in the past six months, notify and consider those laid-off workers.
(6) In addition, Attorney will arrange three of the following recruitment steps on behalf of Employer:
4. Employer, by its designated staff, screens and reviews candidate applications (if any).
5. Employer conducts job interviews if the applicant meets the minimum job requirements.
6. Employer makes determination of the applications and documents all steps of recruitments.
7. f the above recruitment effort shows there is no qualified U.S. worker for the position, Attorney will prepare the petition form and draft a recruitment report on behalf of Employer (2-3 days).
8. Attorney files the petition form with DOL.
9. If DOL approves the petition, the DOL Certification will be issued within 60 days of filing.
10. If DOL chooses to audit the petition, Attorney will prepare the necessary documents on behalf of Employer in response to the audit (10-30 days).
11. DOL reviews Employer's response to the audit and makes final determination.
When is a PERM labor certification required?
Most employment-based immigration cases require the labor certification as a first step.Typically, foreign nationals seeking to immigrate in the second (unless the individual obtains a National Interest Waiver) or third employment based preference classifications are inadmissible unless the Department of Labor (DOL) has first issued a labor certification.
Are there any exemptions to the labor certification requirement?
All family-based immigration cases do not require labor certifications.For employment based immigration, following individuals who fall under the first, second, fourth and fifth preference classifications also do not require labor certification:
How is the Labor Certification process initiated?
Employers interested in initiating the Green Card process on behalf of a foreign national beneficiary should contact our office. Detailed information discussing the Green Card process and labor certification will be forwarded to the employer and the beneficiary. In addition, the beneficiary will be forwarded a questionnaire to complete and return to the firm. Upon receipt of the completed questionnaire, attorney will arrange to discuss the process with the employer and the beneficiary and develop the best strategy for their case.
Who is the petitioner in a labor certification?
The employer is the petitioner in a labor certification and files the application on behalf of the foreign national.
What is prevailing wage?
Prevailing wage is a minimum wage determined by the State Workforce Agency (SWA) for a particular position in a particular geographic area. For each labor certification, the prevailing wage is determined by the SWA based on the minimum requirements and the location of the position.
In order to obtain a labor certification, the employer must show that the salary offer for the position involved in the labor certification is no less than the prevailing wage determined by the SWA.
May the employer rebut the prevailing wage determination?
In certain instances, employers may provide countervailing evidence to rebut the state workforce agency's wage determination. For instance, employers may produce a private wage survey to establish that the wage offer is appropriate. However, the survey must meet certain guidelines in order to be accepted by the state workforce agency.
Is there a waiting period before the employer can initiate the labor certification process for foreign employees?
No. Employers may initiate the process at any time. Employment with the petitioning employer is not a prerequisite to filing a labor certification on a foreign national's behalf.
What are unduly burdensome requirements?
The minimum job requirements listed on the labor certification must accurately reflect what is necessary for satisfactory performance of the job duties. A demand for skills, knowledge, abilities, and conditions of employment that exceed what is normally required to satisfactorily perform the job described are considered "unduly burdensome or restrictive" to U.S. workers. Employer must provide a business necessity letter to justify such requirements otherwise the labor certification will be denied.
Can the beneficiary use experience gained on the job?
Experience gained by the foreign national on the job generally may not be reflected in the minimum requirements for the position involved in the labor certification. There are two reasons for this: (1) Employers are prohibited from imposing job requirements in a position where it previously provided on the job training, and (2) Employers may not impose higher requirements for a position in which it previously hired a foreign national that possessed less experience. However, there are exceptions to this general rule. Please contact our office for a detailed analysis for your specific situations.
Where is the labor certification filed?
Depending on the job locations, Labor certifications are filed with the two DOL regional processing centers in Chicago, IL, or Atlanta, GA.
What is a Priority Date and why is it significant?
The United States uses a quota system under which immigrant visas for both employment-based and family-based petitions are issued. Visas are issued based on the first date the employer or alien submits an application to the U.S. government.For PERM based immigration application, the date the PERM application is received by DOL serves as an applicant's "priority date." Individuals seeking to apply for permanent residency must have a "current" priority date before they can file adjustment of status application (I-485 filing).
Does a labor certification confer employment authorization?
No, an approved labor certification only allows employer to file an EB-2 or EB-3 category immigration petition for the foreign national. The filing or approval of a labor certification does not confer work authorization. If the foreign national wants to work for the petitioning employer, s/he is required to maintain a valid work authorized nonimmigrant visa (H1, L1, etc.) or Employment Authorization Document (EAD) issued by the CIS.
Does an approved labor certification provide foreign national legal status within the U.S.?
No. Labor certification is only the first step for foreign national to apply for permanent residence. It does not provide foreign national any legal status in the U.S.
What happens to the labor certification case if the employer petitioner goes out of business?
The labor certification petition may be denied.
What types of expenses should I expect to incur during the labor certification process?
There are two major costs involved in a labor certification: advertising fees and attorney's fees. The cost of advertising for the available job position can vary from several hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisement must be placed. There is no government filing fee required for a labor certification application.
Who should bear the cost related to labor certification?
Under the new DOL regulation, the employer must bear the cost related to labor certification. The foreign national can pay the cost related to I-140 and I-485 filings.
Can an employer apply for a labor certification on behalf of a person who is not currently an employee?
Yes. The labor certification application is filed for prospective employment. The foreign national is only required to work for the employer when the green card is approved. S/he does not need to work for the employer/petitioner while the labor certification is in process. If the foreign national is already working for the petitioning employer, then changing jobs will not affect the labor certification process provided the sponsoring company agrees to continue the labor certification petition on behalf of the foreign national.
May two or more companies file labor certification applications for the same foreign national at the same time?
Yes.
I have already filed an immigration petition myself (NIW). Can I also have my employer file a labor certification on my behalf?
In most instances, filing a labor certification in addition to another immigration petition does not pose any conflicts and is permitted.
What is the employer required to do during the job recruitment campaign?
Generally, the employer needs to maintain documentation of all resumes received: both qualified and unqualified. The employer should conduct interviews with those applicants who meet the minimum job requirements, record interview results, and keep records to explain those applicants who were deemed unqualified.
Who is considered a qualified U.S. worker for labor certification purposes?
For labor certification purposes, a U.S. worker is defined as a U.S. permanent resident or citizen who satisfies the minimum job requirements and is willing to take the position under the conditions and terms described in the labor certification application.
What factors may affect the outcome of a labor certification?
The following factors may impact the outcome of a labor certification application:
After the labor certification has been approved, what factors may prevent the foreign national from obtaining a Green Card?
If the labor certification has been approved, you are well on your way to obtaining a Green Card. Potential risk factors may include petitioning company's inability to pay and your criminal record or other previous violation of immigration law.
PERM Labor Certification is an extremely complicated procedure. However, with the assistance of experienced and responsible immigration attorney, you will have the peace of mind. If you are interested in our free case evaluation and our services, please Contact Us
The following are some of the representative PERM cases that were filed by Law Office of Baoqin Wang.
| Empoyer | Job Title | Job Location | Job Requirements |
|---|---|---|---|
| Dental clinic | Endodontist | Washington | DDS degree + 3 years experience + license |
| Wholesale company | Company Security Specialist | Washington | Bachelor degree + 2 years experience |
| Restaurant | Chinese Chef | Oregon | Two years training or experience |
| Consulting Firm | Management Consultant | Connecticut | Master degree + special skills |
| Dental Clinic | Dentist | Oregon | DDS degree + license |
| Telecommunication Company | Design Engineer | Florida | Master degree + 5 years experience |
| Hospital | Technologist | Oregon | Bachelor degree + special achievements |
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