When there are absolutely no adequate workers in the United States who are qualified and willing to perform the work that you are seeking to have done in the designated field, then you may be able to seek an employee outside of the U.S. and have them fill your position. Some of the many troubles involved with having this sort of visa approved are that it can be extremely difficult to prove in such a way that will be accepted, that there are no available workers to fill the position you are seeking to have filled. Another issue that must be established is that the wages and benefits of U.S. employees will not be subject to change due to the employment of the foreign worker.
An example of some of the visas that require certification:
In some cases, labor certification will not be temporary but rather permanent. This is issued by the Department of Labor (DOL) should it be proven that there is a full-time position open for a foreign national to fill that would not be open for a temporary basis. For this to be a qualifying scenario, the job opening must not have any specific qualifications that would exclude U.S. workers, without any unnecessarily restrictive requirements. They must also not pay less than prevailing wage.
Should an employer be interested, they will fill out the Application for Permanent Employment Certification (Form 9089), detailing the job and requirements of any potential employees. This will be submitted with all appropriate signatures after the employer has obtained a determination of prevailing wage by the National Prevailing Wage Center (NPWC). The employer must have also, in good faith, attempted to recruit U.S. workers for the position and have prepared a recruitment report detailing why all applicants from the U.S. were rejected.
If approved, the NPA will return the form signed by the Certifying Officer to the employer. After certification is achieved, the Employer will need to submit an Immigrant Petition for an Alien Worker (Form I-140) within 90 days to the USCIS. This will need to include the certified Form 9089, along with other required documentation and fees. It is also important to keep in mind that there are certain occupations pre-determined to be eligible for permanent labor certification under 20 CFD §656.15, including physical therapists, professional nurses and those with exceptional ability in science and art.
Until 1998, the labor certification process involved an extensive interview, during which time instructions would be provided on how the employer should go about recruiting for the position in question. The process, which would begin only after a case had been filed, was notorious for its lengthy duration. In addition to complying which each of the instructions issued to an employer at this time, the employer was also expected to persuade—through argument—why a current U.S. citizen applying for the same position was less qualified than a non-citizen. If an adequate argument could not be made for employing an immigrant rather than a citizen, the position would be denied.
The approach described above became more streamlined in 1998, however, when Reduction in Recruitment (RIR) was introduced to the scene, effectively reversing the previously established sequence of events. The role reversal has since allowed employers to first recruit potential employees and then file a case providing evidence that no qualified U.S. workers could be found in replacement of the non-citizens who were found to fit the position. As result of RIR, the overall process of seeking labor certification has been sped up, effectively reducing a process that once took years to complete and making it a process that can now be accomplished in a matter of months.
Today, both standard and RIR labor certifications must first be filed with the Department of Labor in the state in which the job is located. Once the certification has been approved by the Department of Labor at the state level, it can then be transferred up the ladder to the federal Department of Labor where it will be reviewed for final approval. Employers who are interested in expending the process of labor certification by utilizing the RIR process should not hesitate to contact a New York immigration attorney at the law office of Pozo Goldstein, LLP. We are here to help ease the immigration process for our clients, and this starts during your first consultation with the firm.
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