Other Considerations With Respect To Employment-Based Green Cards

As noted above, several of the preference categories also require as a prerequisite to filing the I-140, Immigrant Petition for Alien Worker, with USCIS an approved Labor Certification from the USDOL. The Labor Certification is a certification from the USDOL that there are insufficient available, qualified, and willing U.S. workers to fill the position, and that the employment will not have an adverse effect on the wages and working conditions of similarly situated U.S. workers.

The Labor Certification process requires an employer to test the labor market by means of various recruitment efforts (e.g., for professional positions, the employer must post a notice of the job opportunity in-house, place a thirty (30) day job order with the relevant State Workforce Agency (“SWA”), posting notice with any and all in-house media typically used by the employer in filling job openings, run an advertisement in two (2) Sunday editions of a newspaper of general circulation, and select and complete three (3) additional forms of recruitment from a list of ten (10) choices.)

There is a “special handling” procedure for cases involving certain college and university teachers. If a college or university wishes to petition a foreign national, it must show that it recruited the person pursuant to a competitive recruitment process, including a national print advertisement. The application for the labor certification must be submitted within eighteen (18) months of the selection.

The offered wage for the labor certification must meet or exceed the Prevailing Wage as determined by the SWA. The prevailing wage is determined by looking to workers “similarly employed” in the “area of intended employment.” For institutions of higher education, the Prevailing Wage is based only by comparison with the same type of institution or organization in the area of intended employment.

How is the Prevailing Wage Determined? The USDOL guidance divides the wages levels into four (4) skill levels: Entry (Level I), Qualified (Level II), Experienced (Level III), and Fully Competent (Level IV).

The Prevailing Wage Determination always begins with a Level I (entry level) categorization regardless of the inherent skill level of the occupation and then progresses to a wage within the occupation that is commensurate with that of a qualified, experienced, or fully competent worker only after considering the: job description, experience, education, special skill requirements, and supervisory duties of the job.

The wage offered must not be based on commissions, bonuses or other incentives, unless the employer guarantees the wage. Employer may count fringe benefits. However, in counting fringe benefits the employer must establish the value of the fringe benefits and show that they are not common to comparable jobs.