Ferro & Cuccia Law Firm

EMPLOYMENT-BASED SPONSORSHIP & LABOR CERTIFICATION
Some cases require a labor certificate, and some don’t. Whether or not a labor certificate is required often makes the difference between whether an applicant can get immediate status from the process, or has to retain some type of nonimmigrant status (such as H-1B) for the first year or two in the process.

We advise all prospective clients to consult us directly in order to determine what category you are eligible for. Having said that, here is a very basic list of the kinds of occupations and sub-categories that don’t require a labor certificate:

- applicants of “extraordinary ability” in sciences, arts, education, business or athletics.
- outstanding professors and researches.
- multinational executives and managers.
- professional nurses.
- physical therapists.
- college/university teachers.
- occupations that serve the national interest

What follows is a rough description of the employment-based sponsorship procedure, including the labor certification application, and the respective responsibilities of the employer, applicant and law firm during this entire process. This is not intended to be an exhaustive description, nor is it a substitute for legal advice.

LABOR CERTIFICATION

Most categories of employment-based sponsorship require the approval of a labor certification application. The purpose of this application is to prove that there is availability for this position, i.e. that the applicant would not be taking a job away from a qualified American worker. In order to prove this, we must advertise the position in a local newspaper for two Sundays, and place a job order on the local Department of Labor website for thirty days. (Additional recruitment may be required if the position is deemed to be “professional”, i.e. a college degree or the equivalent is required to perform the job duties.) The newspaper advertisement must contain certain information, such as the title of the position, the general location where the job duties will be performed, and a general description of the experience or education required for the position. Once the application is completed, and thirty days after recruitment is conducted, the application is forwarded to the U.S. Department of Labor (DOL), and we wait for their approval or for further questions or instructions from them.

During this first step, it is our firm’s responsibility to fill out the applications based on the information provided, draft the advertisement based on the required, communicate with the newspaper to have the advertisement placed, oversee the recruitment process, complete and forward the application package to the DOL, and handle all direct correspondence with the DOL. The firm will further advise the employer and applicant as to all legal issues related to this procedure as they arise. It is the responsibility of the employer and the applicant to provide personal information requested by the DOL relating to the employer, the applicant and the position. It is also their responsibility to pay expenses related to the newspaper advertisement (which, if placed in the New York Post, will generally cost between $500 and $600; if placed in the New Jersey Record or Star Ledger, it will generally cost around $700). Furthermore, the employer must sign the applications and all related statements pertaining to the application and recruitment process, and, if it becomes necessary, may have to interview and evaluate candidates who respond to the advertisement.

I-140

Once the labor certificate is obtained, we proceed with the second phase, which is the filing of an I-140 immigrant visa petition on behalf of the applicant. The purpose of this petition is to establish the applicant’s eligibility to immigrate into the United States as a prospective employee of an American organization. It is the responsibility of the law firm to fill out the petition based on information provided by the employer and applicant, advise on the submission of evidence, file the petition to U.S. Citizenship and Immigration Services (USCIS, formerly INS), draft an attorney letter explaining how the evidence is relevant to the legal requirements, and handle all subsequent correspondence with USCIS prior to its determination. It is the responsibility of the applicant and employer to provide the required evidence, which includes (1) evidence of the employer’s financial ability to pay the applicant at the prevailing wage, generally established by submitting the employer’s income tax returns from the year of the filing of the labor certification application, and (2) evidence of the applicant’s qualifications for the offered position, generally established by submitting proof of relevant education such as diplomas, certificates and/or degrees, or submitting letters signed by previous employers that corroborate the applicant’s relevant work experience.

ADJUSTMENT OF STATUS & CONSULAR PROCESSING

The third step in the process is to apply for admission into the United States if the applicant is outside the U.S., or adjustment of status if the applicant is already inside the U.S. If the applicant is outside of the United States, then this application is made to the Department of State through the local American Embassy. If the applicant is already in the United States, then he may submit an I-485 application to USCIS that will allow him to adjust his immigration status from temporary or undocumented to that of lawful permanent residence. (Note: under some circumstances, the second and third step may be done concurrently. Again, this will be discussed on a case-by-case basis.) The applicant can obtain employment authorization and a travel document about four or five months after the adjustment of status application is filed. In this phase, it is the responsibility of the law firm to fill out the application based on biographical information provided by the applicant, submit the petition to the proper agency, advise the client on the corroborating documentation to be submitted, and handle direct correspondence with USCIS. If the client is in New York City, an attorney will accompany the client to the final interview, if one is required.

To summarize, the employer has three main responsibilities in the employment-based sponsorship procedure: (1) To provide basic information necessary to fill out the various forms, and to sign said forms; (2) to furnish copies of the business’ federal income tax return forms in order to prove the business has the financial ability to pay the employee his salary at the prevailing wage; and (3) it may become necessary for the boss to interview one or more applicants for the position at issue during the recruitment phase.

Please feel free to contact us if you have any questions at all about this procedure or anything mentioned.

Starting Documentation:

The following is a list of the documents that we want to see or have copies of prior to starting a case:

1. The potential sponsor’s most recent federal income tax return (highly recommended)
2. Your passport ID, visa, and I-94
3. I-20 (if student)
4. Copies of any prior immigration case that you had previously filed
5. A resume documenting your education and work experience
6. A brief description of the position for which you will be sponsored

Employment-Based Visa Petitions

EB-1 – ALIEN OF EXTRAORDINARY ABILITY
• more

EB-2 – ADVANCED DEGREE WORKER

• more

EB-3 – SKILLED WORKERS

• more

EB-4 – RELIGIOUS WORKERS

• more

EB-5 – INVESTORS

• more












		EMPLOYMENT-BASED SPONSORSHIP & LABOR CERTIFICATION Some cases require a labor certificate, and some don’t. Whether or not a labor certificate is required often makes the difference between whether an applicant can get immediate status from the process, or has to retain some type of nonimmigrant status (such as H-1B) for the first year or two in the process. We advise all prospective clients to consult us directly in order to determine what category you are eligible for. Having said that, here is a very basic list of the kinds of occupations and sub-categories that don’t require a labor certificate: - applicants of “extraordinary ability” in sciences, arts, education, business or athletics. - outstanding professors and researches. - multinational executives and managers. - professional nurses. - physical therapists. - college/university teachers. - occupations that serve the national interest What follows is a rough description of the employment-based sponsorship procedure, including the labor certification application, and the respective responsibilities of the employer, applicant and law firm during this entire process. This is not intended to be an exhaustive description, nor is it a substitute for legal advice. LABOR CERTIFICATION Most categories of employment-based sponsorship require the approval of a labor certification application. The purpose of this application is to prove that there is availability for this position, i.e. that the applicant would not be taking a job away from a qualified American worker. In order to prove this, we must advertise the position in a local newspaper for two Sundays, and place a job order on the local Department of Labor website for thirty days. (Additional recruitment may be required if the position is deemed to be “professional”, i.e. a college degree or the equivalent is required to perform the job duties.) The newspaper advertisement must contain certain information, such as the title of the position, the general location where the job duties will be performed, and a general description of the experience or education required for the position. Once the application is completed, and thirty days after recruitment is conducted, the application is forwarded to the U.S. Department of Labor (DOL), and we wait for their approval or for further questions or instructions from them. During this first step, it is our firm’s responsibility to fill out the applications based on the information provided, draft the advertisement based on the required, communicate with the newspaper to have the advertisement placed, oversee the recruitment process, complete and forward the application package to the DOL, and handle all direct correspondence with the DOL. The firm will further advise the employer and applicant as to all legal issues related to this procedure as they arise. It is the responsibility of the employer and the applicant to provide personal information requested by the DOL relating to the employer, the applicant and the position. It is also their responsibility to pay expenses related to the newspaper advertisement (which, if placed in the New York Post, will generally cost between $500 and $600; if placed in the New Jersey Record or Star Ledger, it will generally cost around $700). Furthermore, the employer must sign the applications and all related statements pertaining to the application and recruitment process, and, if it becomes necessary, may have to interview and evaluate candidates who respond to the advertisement. I-140 Once the labor certificate is obtained, we proceed with the second phase, which is the filing of an I-140 immigrant visa petition on behalf of the applicant. The purpose of this petition is to establish the applicant’s eligibility to immigrate into the United States as a prospective employee of an American organization. It is the responsibility of the law firm to fill out the petition based on information provided by the employer and applicant, advise on the submission of evidence, file the petition to U.S. Citizenship and Immigration Services (USCIS, formerly INS), draft an attorney letter explaining how the evidence is relevant to the legal requirements, and handle all subsequent correspondence with USCIS prior to its determination. It is the responsibility of the applicant and employer to provide the required evidence, which includes (1) evidence of the employer’s financial ability to pay the applicant at the prevailing wage, generally established by submitting the employer’s income tax returns from the year of the filing of the labor certification application, and (2) evidence of the applicant’s qualifications for the offered position, generally established by submitting proof of relevant education such as diplomas, certificates and/or degrees, or submitting letters signed by previous employers that corroborate the applicant’s relevant work experience. ADJUSTMENT OF STATUS & CONSULAR PROCESSING The third step in the process is to apply for admission into the United States if the applicant is outside the U.S., or adjustment of status if the applicant is already inside the U.S. If the applicant is outside of the United States, then this application is made to the Department of State through the local American Embassy. If the applicant is already in the United States, then he may submit an I-485 application to USCIS that will allow him to adjust his immigration status from temporary or undocumented to that of lawful permanent residence. (Note: under some circumstances, the second and third step may be done concurrently. Again, this will be discussed on a case-by-case basis.) The applicant can obtain employment authorization and a travel document about four or five months after the adjustment of status application is filed. In this phase, it is the responsibility of the law firm to fill out the application based on biographical information provided by the applicant, submit the petition to the proper agency, advise the client on the corroborating documentation to be submitted, and handle direct correspondence with USCIS. If the client is in New York City, an attorney will accompany the client to the final interview, if one is required. To summarize, the employer has three main responsibilities in the employment-based sponsorship procedure: (1) To provide basic information necessary to fill out the various forms, and to sign said forms; (2) to furnish copies of the business’ federal income tax return forms in order to prove the business has the financial ability to pay the employee his salary at the prevailing wage; and (3) it may become necessary for the boss to interview one or more applicants for the position at issue during the recruitment phase. Please feel free to contact us if you have any questions at all about this procedure or anything mentioned. Starting Documentation: The following is a list of the documents that we want to see or have copies of prior to starting a case: 1. The potential sponsor’s most recent federal income tax return (highly recommended) 2. Your passport ID, visa, and I-94 3. I-20 (if student) 4. Copies of any prior immigration case that you had previously filed 5. A resume documenting your education and work experience 6. A brief description of the position for which you will be sponsored Employment-Based Visa Petitions EB-1 – ALIEN OF EXTRAORDINARY ABILITY • more EB-2 – ADVANCED DEGREE WORKER • more EB-3 – SKILLED WORKERS • more EB-4 – RELIGIOUS WORKERS • more EB-5 – INVESTORS • more