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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.
C. HOW DOES THE REGULAR LABOR CERTIFICATION PROCESS WORK?
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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