A. SKILLED WORKERS, PROFESSIONALS, AND OTHER WORKERS
To qualify for permanent resident status in any sub-category of this
classification, the alien is required to have employer sponsorship and
Labor Certification, or documentation to prove that the alien qualifies
for one of the shortage occupation the Department of Labor has identified
on a list known as "Schedule A." Schedule A occupations include
physical therapists, professional nurses, physicians or surgeons, college
or university teachers, aliens of exceptional ability in the sciences
or arts (except performing arts), certain religious occupations, and intra-company
transferees in managerial or executive positions. Certain provisions of
the Immigration Act of 1990 directed the Department of Labor to conduct
a Labor Market Information Pilot Program to identify additional occupations
for which there is a shortage of labor within the United States. Aliens
in those occupations, then will be able to apply for permanent resident
status under this classification must be filed by the employer on behalf
of the alien.
A "skilled worker" means an alien who, at the time the petition
is submitted, is qualified and capable of performing a job that requires
at least two years of training or experience for which no U.S. workers
are available. The job must not b of a seasonal or temporary nature. In
some instances, an alien with less than two years experience may be eligible
for permanent resident status under this classification if relevant post-secondary
education may be considered as training.
The skilled worker's petition must be accompanied by evidence that the
alien meets the educational, training, or experience, and any other requirements
set forth in the approved Labor Certification application. The evidence
may be in the form of letters from trainers, or previous or current employers.
The letter must contain the name, address, and title of the trainer or
employers, and a detailed description of the training received or the
experience of the alien. If the alien seeks status under the provisions
of Schedule A, or under DOL's Labor Information Pilot Program, a fully
executed uncertified Form ETA-750 must accompany the I-140 Petition.
A "professional" means an alien who holds at least a U.S. baccalaureate
degree or a foreign equivalent degree, and who is a member of the professions.
The petition must be accompanied by an official college or university
record showing the date the baccalaureate degree was awarded, and the
area of concentration of study. To show that the alien is a member of
the professions, the employer must submit evidence showing that the minimum
of a baccalaureate degree is required for entry into the occupation.
"Other workers" are those who, at the time the petition is
filed, are capable of performing unskilled labor, or labor that requires
less than two years training or experience, for which U.S. workers are
not available. The employment must not be of a temporary or seasonal nature.
An I-140 petition for an unskilled worker must be accompanied by evidence
that the alien meets any educational, training, or experience requirement
of the approved Labor Certification application.
B. WHAT ARE THE THREE TYPES OF LABOR CERTIFICATION PROCESSING?
On October 1, 1996, the Department of Labor set up new procedures and
criteria for processing applications for Labor Certifications.
Under this new system, those cases in which an employer has engaged in
extensive pre-filing recruitment, and which meet the following four criteria
can now be filed with a request for reduction in further post filing recruitment:
(1) there is little or no U.S. worker availability for the
occupation;
(2) there are no restrictive requirements;
(3) the job is offered at the prevailing wage; and,
(4) "adequate recruitment has been conducted through "sources
normal to the occupation and industry" within the
last six months.
If the request is approved, the "reduction in recruitment" case
should be handled "expeditiously".
A second track, designated for "limited processing review",
has been set up for cases with no processing problems, i.e., no special
job requirements, no unusual duties, no applicant availability, and no
wage issues. Cases which meet these criteria will be approved after minimal
review.
The third track involves all other cases for regular processing. Under
the new procedures, the State Employment Service will screen these cases
for restrictive requirements. Any case with a restrictive requirement
will be forwarded to the Labor Department for review and consideration
of and business necessity justification an employer may have for the restrictive
requirement. If an employer's justification is accepted, the cases will
be remanded to the State Employment Service. These cases should be given
expedited treatment once recruitment is completed.
If the justification for the requirement is determined to be insufficient,
a Notice of Findings will issue. Implicit in the system is a heightened
review of restrictive requirements. An employer must prove that the job
itself and all requirements for the job existed prior to hiring the alien
worker.
D. WHAT ARE THE RESPONSIBILITIES OF THE SPONSORING EMPLOYER?
It is essential that the employer have a good faith intent to hire the alien
on a permanent basis once permanent resident status is granted. At the outset,
of course, the employer must sign the job offer form and provide any information
needed concerning the job duties, experience required, etc. If salary or
experience amendments are requested by SES, the employer will be asked to
sign the amendments and return them on a timely basis. The most crucial area
of responsibility for the employer is the recruitment effort. The employer
must notify his employee's bargaining representative that a Labor Certification
is being filed. If there is no bargaining representative, the employer must
notify his employees by posting notices of the job opening at the place of
employment for ten working days, The job posting must contain the job title,
a detailed description of the job duties, the education and experience requirements,
the salary and hours of the job, and the name and telephone number of the
person to contact at the business for more information. In addition, the
employer must account for every individual referred by SES as a result of
the aforementioned three day advertisement. If the person is clearly unqualified,
the employer must document the rejection of the applicant with valid job-related
reasons. If a person may be qualified, on the basis of his/her resume, the
employer must conduct an interview, and then give lawful, job-related reasons
why the person is not qualified. the results of the internal posting must
also be submitted at the end of the recruitment period.
Once the recruiting has been completed, no further paperwork is required
until the Labor Certification has been approved by the DOL. At that time,
the employer will be asked to sign Form I-140, "Petition for Alien
Worker". This form is merely a summary of the job offer, and the
employer will then be asked to provide evidence that the U.S. employer
has the ability to pay the wage offered. The evidence will be in the form
of copies of annual reports, federal tax returns, or audited financial
statements.
The alien will be granted permanent resident status after passing an
oral interview with a Consular Officer in a foreign country or approval
by a Regional Immigration Center in the U.S. The employer will be asked
to provide a brief letter verifying his/her intent to employ the alien
on a permanent basis according to the terms stated in the Labor Certification
application.
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