Labor Certification Applications (EB2 & 3)

In most cases where you are sponsored for permanent residence by your employer, you will need to obtain a labor certification from the Department of Labor (DOL). Once the labor certification is approved, the employer files an immigrant visa petition (I-140) and the employee files for an application for permanent residence (I-485 or immigrant visa processing).

The process involves three steps.

I. Labor Certification Application

The purpose of the application is to show that there are no US workers ready, willing, able, and qualified to take the position being offered the employee, and that the terms of employment will not harm other US workers. To do this, the employer must:

  1. Offer the prevailing wage, as determined by the DOL for that occupation. Depending on the requirements of the position, the occupation will be rated either Level I (entry level) or II (advanced), with corresponding prevailing wages.
  2. Test the labor market, by running a three-day ad (including Sunday) in a newspaper of general circulation (or an ad in a professional journal, depending on the position), posting two internal job notices, and having a notice placed in the local State Workforce Agency job bank. During the 30-day recruitment period, all applicants will be reviewed and perhaps interviewed to determine if there are any US workers who are qualified and interested in the job.

II. I-140 Visa Petition

Once the labor certification application is approved, the employer files the visa petition (form I-140) to calssify the employee as an immigrant. At this point, the employer is required to show the ability to pay the prevailing wage from the time the labor certification was filed. This is important to keep in mind if the alien is not already employed by the employer.

III. I-485 Application for Permanent Residence or Immigrant Visa Processing

Once the visa petition is approved and an immigrant visa is available, the employee applies for permanent residence, either through the consulate abroad or with USCIS in the United States. If the employee is in the United States, it may be possible to file the I-140 petition and the application for permanent residence together. Once the I-485 application for permanent residence is filed, the employee is eligible for a work permit.

The employee’s spouse and unmarried children under 21 are also eligible to apply for permanent residence, whether they are in the United States or abroad. If they are in the United States, they are eligible for work permits as well.

The Visa Bulletin states visa availability for each employment-based category. Depending on yours, you may have to wait several years before filing for permanent residence.

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