Not all work visas are created equal. If you’re looking to hire a foreign national to work at your company in the U.S., the application process for some visas is more straightforward than for others.
Some U.S. work visas have a labor certification requirement. This requirement means that in order to hire a foreign national, you – as the employer – must first demonstrate that certain criteria are met. This requirement applies to all EB-3 visas and many EB-2 visas.
What is labor certification?
At its core, labor certification is a protective measure by the U.S. government to ensure that hiring a foreign national is not taking a job away from a deserving American citizen or permanent resident. As part of the visa sponsorship process, the employer must test the job market in the area and effectively demonstrate that there is no willing, qualified U.S. worker in the company’s geographic region who is available to take the job.
What is the process?
An employer who wants to sponsor a prospective employee for an EB-2 or EB-3 visa must first file a Prevailing Wage Request from the U.S. Department of Labor (DOL). The DOL will then inform the employer of the standard wage for the job in question in the geographic region in question. The employer must then conduct a recruitment campaign for this job at this wage (or higher) in their local area. The recruitment campaign must last for at least 30 days and be advertised:
- Through the state’s workforce agency
- In at least two issues of a Sunday edition newspaper of general circulation in the area
- In at least three other outlets that meet DOL approval
If any qualified candidates apply for the position during this recruitment, the employer must interview them. The employer must keep detailed records of all applications received, applicants interviewed as well as reasons for any rejections.
If the employer finds no other acceptable applicants during this recruitment campaign, they can apply to the DOL for permanent employment certification (Form 9089). Once approved, the employer may then file a visa petition with U.S. Citizen and Immigration Services.
The administrative process involved in sponsoring a foreign employee can be lengthy and cumbersome. An immigration attorney can help you get through the process, ensuring all of your I’s are dotted and T’s are crossed.