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In many cases the only way to obtain U.S. permanent residence (“green card”) is for an individual to find an employer in the United States who is willing to assist by applying for a Labor Certification on his/her behalf.
The Labor Certification is a process whereby through very strict regulations, the U.S. Department of Labor (DOL) is satisfied that a full and proper recruitment has been made of U.S. workers and that the U.S. Government standards have been met to establish that there is no U.S. worker currently qualified, willing and able to fill the position offered to the foreign worker.
The job has to be advertised in publications acceptable to the DOL and any applications are sent directly to the State Employment Service Agency (SESA) for the employers’ review and backgrounds checks to insure that the alien was never convicted of any crime that could affect immigration status.
All applicants who appear to qualify must be interviewed and may only be rejected for lawful job related reasons.
If there are qualified workers, it is probable that the case will fail. If the agency unreasonably delays processing of a PERM application, it is possible to file a petition for aWrit of Mandamus.
Depending on where in the U.S. the job is located, the process can take up to 3 years or more. Once approved, the case can be forwarded to the U.S. Immigration and Naturalization Service to complete the permanent residence application.
This can be in the U.S. at the Immigration and Naturalization Service or out of the U.S. at a U.S. Consulate in the area having jurisdiction over the employee.
An individual may be exempted from the Labor Certification process if an employer can demonstrate it has extensively recruited through sources normal to its industry, for the six months preceding the filing of the Labor Certification application. This application can then be considered for Reduction in Recruitment or “fastrack” processing.
Examples of employment based categories not requiring a Labor Certification are multi-national executives or managers (EB-1(c)), aliens of extraordinary ability in the sciences, arts, education, business, or athletics, outstanding professors and researchers, applicants performing services in the “national interest”, and the permanent investor visas (EB-5).
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