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The labor certification is the first in a three step process to becoming a legal permanent resident that involves both the
Department of Labor (DOL) andBCIS. The law requires that you continue to be employed by your current employer
throughout all three steps of this process for the granting of legal permanent residency to be valid. If you leave your
employer or make a significant job change with the same employer, the process must be started all over again.
The law requires that your employer file a labor certification application on your behalf with the DOL. That application
must satisfy the DOL that there are no minimally qualified U.S. workers who could perform your job, as it existed when you
began your employment with your employer. To satisfy these requirements, our preparation of the labor certification will
focus on 4 areas:
- the skills necessary to perform your job
- how you acquired those skills prior to joining your current employer
- how your employer recruited for your position
- whether there were any qualified applicants for your position
Recruitment Efforts and Results for your Position
While the DOL looks to your original date of hire for some purposes, it looks to the date of the filing of the labor
certification for others, including the recruitment requirement. Initially, the DOL does not require that your employer
show recruitment for your position at the time of your initial hire, because you were hired as an H-1B temporary worker.
Now that your employer has decided to pursue a labor certification for you, the DOL considers that a "real" position for
which U.S. workers should be considered.
Labor certifications can be filed via the "regular" process or the "Reduction in Recruitment" (RIR) Process. The regular
process requires that we submit an application to the State Employment Services Agency ("SESA") of the DOL and wait for
instructions regarding where and when to place a very specific advertisement for your position. The DOL then receives the
resumes submitted in response to this ad and forwards them to your employer for review. Your employer then submits the
results of this review to the SESA. If the SESA is satisfied that there were no available and qualified U.S. workers, then
the SESA will forward the application to the regional office of the DOL for processing
The RIR process allows your employer to avoid having the DOL provide very specific recruitment instructions. Instead,
your employer submits proof of its recruitment efforts for your position, and the results of those efforts to the SESA
at the same time it files your application. If the SESA is satisfied, it will forward the application to the regional
office for processing.
In order to take advantage of the RIR process , your employer must submit proof of advertising for your position during the
six months prior to filing your labor certification. This proof must include print ads, internet ads and an internal
posting for 10 business days.
Finally, once recruitment is conducted, your employer will review resumes to determine if any of them should be reviewed
by your manager. BY LAW YOU ARE NOT PERMITTED TO PARTICIPATE IN THIS PART OF THE PROCESS. If no qualified applicants are
identified, we will file the application with the SESA.
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I-140 IMMIGRANT PETITION BASED ON LABOR CERTIFICATION
Once your labor certification is approved, your employer must file an I-140 immigrant petition for you with the BCIS.
This can be done once the labor certification is approved, regardless of your country of birth or your level of education
or experience. The BCIS will classify you in the "second" or "third" preference category. In most cases, if your position
requires a Masters Degree or a BS plus 5 or more years experience of progressive related experience, and you possess that
level of education and/or experience, you will be placed in the 2nd preference category. If your position requires less
than this level of education or experience, you will be placed in the 3rd preference category. Your preference category,
country of birth and date of filing your labor certification ("priority date") will determine when you can file your
adjustment of status application.
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I-140 OUTSTANDING RESEARCHER/PROFESSOR
- Three Years of Research Experience Prior to the Date of Filing the Petition
- Holding Research Position with Employer
- Evidence that the researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
- Documentation of the foreign national's receipt of major prizes or awards for outstanding achievement in the academic field
- Documentation of the foreign national's membership in associations in the academic field which require outstanding achievements of their members
- Published material in professional publications written by others about the foreign national's work in the academic field
- Evidence of the foreign national's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field
- Evidence of the foreign national's original scientific or scholarly research contributions to the academic field
- Evidence of the foreign national's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field
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