John Valdez’s Legal Blog

Few people realize just how complicated it is for employers to sponsor valuable employees for a green card.  For most employers, they must go through a three part process:  First, file a labor certification application.  Second, if the labor certification application is approved, file an immigrant visa petition.  Third, if there are available immigrant visas, file an application for adjustment of status or, if outside of the U.S., an application for a permanent resident visa at a U.S. Consulate.  This blog focuses on just the first step, the labor certification process. (There are cases where labor certification is not required for an employment-based green card, but that will be the subject for a future blog)

Before a labor certification can be granted, the employer must demonstrate that there is not a qualified, willing, and able U.S. worker (hereinafter referred to as a “qualified U.S. worker”) available to fill the position that the employer would like to give to a foreign national.  If this situation can be shown, and the foreign national is qualified to fill the position, the labor certification application may be certified and the process can move forward to the next step in the green card process. 

To demonstrate the lack of qualified U.S. workers, the employer must demonstrate that it advertised for the position, but the advertisement did not result in an application from a qualified U.S. worker willing to take the job.  Normally, there are several advertisements required in different mediums.  The employer is also responsible for providing notice of the labor certification application to the applicable union, or if there is no union, to the employer’s workers.  The process has many requirements, such as the employer’s assurance that it will pay the prevailing wage for the position. 

The labor certification process was developed to insure that when a foreign worker gains U.S. permanent residence through a job offer, it is not at the expense of a U.S. worker qualified for the position.  Thus, the system’s goal is to protect U.S. workers, and it relies on the employer’s good faith efforts to find a qualified U.S. worker. 

In practice, the labor certification process is deeply flawed.  Employers often have a difficult time understanding the rules.  For example, a labor certification application cannot be filed if there is an available U.S. worker who has the “minimum” “objective” qualifications for the position, such as, for example, a certain bachelor’s degree and two years of experience.  The process does not allow the employer to consider such factors as a terrible personality, or a prior employer’s recommendation not to hire the person.   Thus, the process often does not allow for real or normal business recruitment practices.

While the labor certification process is complex and difficult to apply for most employers, the lawyers at Smith & Garg, PC are very good at guiding employers, within the rules, to complete the process.  If you are considering sponsorship of a foreign worker, please contact us for a professional consultation.