Temporary Work Visa
Employers who wish to hire foreign workers to temporarily
perform services or labor or to receive training may file
a Petition for Non-Immigrant Worker. To learn more about
temporary work visas, click here.
Permanent
Work Visa
An
immigrant is a foreign national who is authorized to live
and work permanently in the United States as a Lawful
Permanent Resident. You must go through a multi-step process
to become an immigrant based on employment. The USCIS
must approve an immigrant petition (application) that
was filed for you, usually by an employer.
Who is eligible to file concurrently?
The interim rule applies to employment-based immigrant
petitions under the First, Second and Third Preference
categories (Section 203(b)(1),(2), and (3) of the Immigration
and Nationality Act). Applicants with pending labor certification
applications must await approval of the application by
the Department of Labor to benefit from this provision.
The following is a list of the types of Form I-140 immigrant
petitions which benefit from this new rule:
· Individuals of Extraordinary Ability;
· Outstanding Researchers;
· Multinational Managers and Executives; · National Interest
Waiver candidates (who hold an advanced degree or are
of exceptional ability);
· Advanced Degree Professionals with an underlying approved
labor certification from their sponsoring employer;
· Professionals holding Bachelor's degree with an underlying
approved labor certification from their sponsoring employer;
· Skilled Workers - i.e. are being offered a job that
requires at least two years experience, with an underlying
approved labor certification from their sponsoring employer;
· Other workers (unskilled labor- and who have an underlying
approved labor certification from their sponsoring employer).
What Does the Law Say?
The legal foundation for getting approval for hiring an
alien worker permanently comes from the Immigration and
Nationality Act (INA). For the part of the law that addresses
employment-based immigrants, please see INA § 201, INA
§ 202, INA § 203 and INA § 204. Rules published in the
Federal Register explain the eligibility requirements
for individuals petitioning for employment-based immigration
based on specific criteria. They are in the Code of Federal
Regulations [CFR] at 8 CFR § 204.5.
Who is Eligible for Employment Based Immigration?
There are five categories of employment based immigration:
First Preference (EB-1 priority workers): aliens
with extraordinary ability, outstanding professors and
researchers, and certain multinational executives and
managers.
Second Preference (EB-2 workers with advanced degrees
or exceptional ability): aliens who are members of
the professions holding advanced degrees or their equivalent
and aliens who because of their exceptional ability in
the sciences, arts, or business will substantially benefit
the national economy, cultural, or educational interests
or welfare of the United States.
Third Preference (EB-3 professionals, skilled workers,
and other workers): aliens with at least two years
of experience as skilled workers, professionals with a
baccalaureate degree, and others with less than two years
experience, such as an unskilled worker who can perform
labor for which qualified workers are not available in
the United States.
Fourth Preference (EB-4 special workers such as those
in a religious occupation or vocation): aliens who,
for at least two years before applying for admission to
the United States, have been a member of a religious denomination
that has a non-profit religious organization in the United
States, and who will be working in a religious vocation
or occupation at the request of the religious organization.
Fifth Preference (EB-5 Employment Creation) -Foreign
Investors.
PERM Labor Certification
PERM
Labor Certification - Labor certification for the Permanent
Employment of Aliens in the United States; Implementation
of New System (PERM)
PERM
Labor Certification - HIGHLIGHTS:
1. Effective date: March 28, 2005 2. The prevailing wage
standard is the same for both PERM and the recent H- 1B
amendments (100% of prevailing wage must be paid, but
four wage levels available) 3. The goal for decisions
on PERM electronically filed applications is 45 –
60 days 4. Conversion means withdrawal and refiling, and
only for “identical job opportunities” 5.
No fees (future rulemaking possible) 6. Anti-fraud provisions
include verification that employer is a bona fide business
entity with employees on its payroll 7. No money penalties
or debarment for fraud or willful misrepresentation of
a material fact (future rulemaking possible)
Prevailing
Wages
Overview
– Generally, the changes and clarifications related
to the employer’s obligation to pay prevailing wage
and the manner for challenging a prevailing wage determination
apply equally to H-1Bs and to Labor Certifications.
PERM Labor Certification - Posted Notice
The
employer must post notice of the job opportunity for at
least ten consecutive business days. The notice period
must be between 180 and 30 days before filing. The notice
must contain the salary, but may contain a wage range,
so long as the lower level of the range meets or exceeds
the prevailing wage. The comments clarify that the primary
purpose of the posted notice is to give employees an opportunity
to comment on the application and that the posted notice
is not another way to recruit US workers. As required
by IMMACT 90, the notice must say that any person may
provide documentary evidence bearing on the application
to the CO. This is similar to the current regulation.
PERM
Labor Certification - Use of Other In-House Media
In
addition to printed posted notice, the employer must use
any and all in-house media, whether electronic or printed,
in accordance with normal procedures used for recruitment
for similar positions in the organization. This appears
to allow employers to avoid listing executive-level positions
in in-house media if it is not normal practice to do so.
The new ETA 9089 form, which replaces Form ETA 750 for
most types of cases, does not specifically require the
employer to attest that he or she has advertised the job
through inhouse media. Duration of the in-house media
notification, per the comment, may be as long as other
comparable positions are posted.
PERM
Labor Certification - Job Order
The
employer must place a job order with the SWA for a period
of 30 days. Form ETA 9089 requires the employer to list
the start and end date of the job order. These dates serve
as documentation of the job order.
PERM
Labor Certification - Advertisements
The
employer must place two advertisements on two different
Sundays in the newspaper of general circulation in the
area of intended employment. Both ads must be placed more
than 30, but not more than 180 days before filing. The
ads may be placed on consecutive Sundays. If the job is
located in a rural area with no Sunday edition, the employer
may use the edition with the widest circulation. However,
the use of a suburban newspaper on a day other than Sunday
is not allowed. Placement of the ad under an inappropriate
heading or keyword would be considered a failure to make
good-faith efforts to recruit U.S. workers. The ad must
list the name of the employer, the geographic area of
employment (only if the job site is unclear, e.g., if
applicants respond to a location other than the job site
or if the employer has multiple job sites), and a description
of the vacancy specific enough to apprise US workers of
the job opportunity. The employer may include minimum
education and experience requirements or specific job
duties in the ad as long as those requirements also appear
on Form 9089. The ad must direct applicants to send resumes
or report to the employer, as appropriate. The employer’s
physical address is not required. A central office or
post office box may be designated for receipt of resumes.
The ad need not include the salary or a detailed listing
of the job description and requirements. However, if the
ad does include the salary, the salary stated must meet
or exceed the prevailing wage. Documentation of the ad
can be supplied by a copy of the newspaper page or proof
of publication supplied by the newspaper. Form ETA 9089
requires the employer to list the name of the newspaper
and date of publication for each ad. If the job requires
experience and an advanced degree, the employer may use
a professional journal in lieu of one of the Sunday ads.
The proposed regulations had required use of a professional
journal for such jobs, but DOL made this requirement optional
in light of comments submitted.
PERM
Labor Certification - Electronic filing
Employers
will go to the ETA website located at http://www.plc.doleta.gov
to complete and file the form. The site will allow frequent
users to set up a file with basic, repeat information,
much like the LCA system (employer name, address, etc.).
Passwords or identifiers also might be assigned to individuals
(not businesses) for fraud prevention purposes. No G-28
is required. The employer signs the form declaring the
attorney to be the legal representative. Once the ETA
is certified, the employer must sign the form upon receipt
from ETA. A copy must be maintained in the employer’s
files; the original, signed ETA must accompany the I-140
when it is filed with CIS. A priority date will be assigned
as of the date the electronic submission is accepted for
filing. Incomplete applications will not be processed,
but simply denied.
PERM
Labor Certification - Filing by mail
Applications
can be mailed directly to the appropriate centralized
processing center. The addresses of the processing centers
will be listed at http://www.workforcesecurity.doleta.gov/foreign/
Applications filed by mail must bear the original signature.
A priority date will be assigned as of the date of receipt,
provided the form is accepted for filing.
PERM
Labor Certification - Supporting documentation
Whether
filed electronically or by mail, no supporting documentation
will be filed with the ETA 9089. Instead, the employer
must maintain supporting documentation in the event an
audit is required or the Certifying Officer otherwise
requests certain documents. Such documentation, along
with a copy of the ETA form, must be retained for five
years from the date of filing ETA 9089.
PERM
Labor Certification - Prevailing wage determination as
a pre-requisite to filing
Employers
must file with the SWA and receive a prevailing wage determination
prior to filing the ETA 9089. Employers will use the state-designated
prevailing wage request form. Information from the prevailing
wage determination will then be incorporated into the
ETA 9089. The actual prevailing wage determination form
should be retained as a supporting document, to be furnished
to ETA in the event of an audit.
PERM
Labor Certification - Schedule A
Employers
will continue to file Schedule A applications with the
Department of Homeland Security (DHS) as part of the I-140
petition process. The application must contain the ETA
Form 9089, “Application for Permanent Employment
Certification,” a prevailing wage determination,
and evidence that a notice to a bargaining representative
(if applicable) or employees has been made in regard to
the application. As with cases filed with the Department
of Labor (DOL), the notice must be posted for at least
10 consecutive business days in conspicuous places where
the employer’s U.S. workers would be expected to
see it, as well as in any and all in-house media that
might normally be used for the recruitment of similar
positions in the company. The notice should include the
address of the appropriate Certifying Officer, be provided
between 30 and 180 days of filing, and contain information
that would normally be included in an advertisement, as
well as the rate of pay. A copy of the posting and other
related documentation should be included with the Form
I-140 filing. Failure to include evidence of the notice
may lead to the denial of the I-140 petition.
Group
I of Schedule A continues to include professional nurses
and physical therapists, and Group II includes aliens
to be employed aliens of exceptional ability in the sciences
and arts. The final rule also provides that performing
artists of exceptional ability will be included as in
Group II of Schedule A. Under the current process, employers
wishing to file for performing artist of exceptional ability
utilize Special Handling procedures.
Substantive
requirements remain largely unchanged, though professional
nurses may now demonstrate eligibility though passage
of the National Council Licensure Examination for Registered
Nurses (NCLEX-RN). Alternatively, eligibility may continue
to be demonstrated by a full and unrestricted (permanent)
license to practice nursing in the state of intended employment
or a Certificate from the Commission on Graduates of Foreign
Nursing Schools (CGFNS). The supplementary material included
with the final rule clarifies that (1) a state license
must be permanent; (2) passage of the CGFNS skills test
without the certificate will not suffice in terms of allowing
for eligibility; and (3) a prevailing wage determination
for professional nurses will be required. As stated earlier,
the regulations require that all Schedule A positions
include a prevailing wage determination.
PERM
Labor Certification - Schedule B
The
final rule eliminates Schedule B.
PERM
Labor Certification - Special Handling
Applications
for certification of employment of college and university
teachers are filed by submitting a completed ETA Form
9089, “Application for Permanent Employment Certification,”
with the Department of Labor. The supplementary material
to the final rule clarifies that only college and university
teachers are covered by special handling. Litigation broadening
those teachers defined by the Act as eligible for special
handling was considered and disregarded, at those filed
for teachers outside of Alaska. The supplementary material
also clarifies that colleges and universities may utilize
special handling or regular procedures. In either case,
the employer must be able to document that the alien was
found to be more qualified than each U.S. worker who applied
for the job opportunity. Documentation of “competitive
recruitment and selection process” under special
handling procedures would include (1) a statement, signed
by an official who has actual hiring authority outlining
in detail the recruitment procedures undertaken, including
the total number of applicants for the job opportunity
and the specific lawful job related reasons why the beneficiary
is more qualified than each of the U.S. workers who applied
for the job. Documentation would also include a final
report of the body making the selection, as well as a
copy of an advertisement in a national professional journal,
evidence of other recruitment sources utilized, and a
written statement attesting to the degree of the beneficiary’s
educational or professional qualifications and academic
achievements. The posting of a notice is also required.
Applications must be made within 18 months of the selection.
It is expected, however, that previous practice will continue
whereby after the 18 months has passed, the employer can
again test the labor market in compliance with Special
Handling requirements and file under special handling
procedures.
How Do I File a Petition for Alien Worker?
The Law Offices of Susana Chung will be pleased
to process your Work Visa Card application, on behalf
of your employer. Our law office will carefully analyze
your case and make recommendations on the most appropriate
process for you or your company to pursue. We then assist
with preparing documents and letters, continuing the case
through the
Adjustment of Status or consular
processing stage, until the principal applicant and family
members receive the Green Card.
How Can I Find Out the Status of My Petition?
Click on the menu button to the left, labeled "Check
Case Status" and enter your file number.
