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Labor Certification Special Handling Summary


Permanent resident status acquired through an offer of employment is often an employer-sponsored and employer-driven process.  With a few exceptions (such as applications involving persons of extraordinary ability, outstanding professors and researchers, multinational executives and managers, persons in the national interest, physical therapists, and registered nurses) obtaining a "labor certification" from the U.S. Department of Labor is a necessary first step.

The entire permanent resident process involves three stages and two to three governmental agencies.  The length of time that the application may take is difficult to determine and is heavily influenced by the processing times and delays at the governmental agencies and by the presence or absence of a waiting list or quota in the visa category in which the applicant eventually will apply for permanent resident (or “green card”) status.

First Stage – PERM Labor Certification

Institutions of higher education that have undertaken a competitive search and selection process to hire a foreign national for a position that involves some teaching may rely on the previously undertaken recruiting effort.  Colleges and universities are given 18 months from the date the foreign national was selected (date of the offer letter) to file their PERM labor certification applications with the U.S. labor department.

The application must include proof of at least one advertisement in a print or electronic national professional journal, the report of the election committee, a statement of hiring authority, a statement of the foreign national’s qualifications, a Notice of Filing (a disclosure-type notice that the U.S. labor department requires in all such cases), and a prevailing wage determination from the U.S. labor department.  The application is filed electronically with the U.S. labor department via a dedicated website.

The labor department reviews the application and may (a) approve the application, (b) request documentation from the college/university to support the application,(c) require the college/university to conduct further recruitment, or deny the application.

Second Stage – Immigrant Visa Petition

If the labor department issues a labor certification, the college/university next files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS).  The petition is the academic institution’s request that USCIS (a) find the foreign national qualified for the position offered and (b) place the foreign national into one of two visa categories.  Although there are several employment-based visa categories in which workers may qualify, the second and third employment-based preferences (described below) are used in labor certification cases:

  1. EB-2 Professionals with Advanced Degrees and Persons with "Exceptional Ability" in the sciences, arts, or business; and
  2. EB-3 Skilled Workers, Professionals with Basic (Bachelor's) Degrees, and Other (Unskilled) Workers.

Given the nature of most higher education position, almost all such applications fall into the EB-2 preference category.

Third Stage – Permanent Resident Application

The foreign national may apply for “adjustment of status” through USCIS in the United States or for an immigrant visa at a U.S. consulate abroad (usually in the foreign national’s home country).  The vast majority of applicants apply to USCIS by filing an adjustment of status application.

In some cases, an adjustment of status application may be filed concurrently with an immigrant visa petition (in other words, stages two and three may be combined into a single filing), but only if there is no quota queue or waiting list preventing the filing of an adjustment of status application

Alternatively, the foreign national may opt for “consular processing” – which results in an interview with the U.S. consulate in the person’s home country after USCIS has decided the immigrant visa petition (stage two).

Important Note

Please keep in mind that this proceeding does not authorize the university to employ the foreign national – nor does it generally permit the foreign national to remain in the United States – while the labor certification stage is under consideration.  Permission to remain in the U.S. and to work occurs after the adjustment of status application (stage three) has been filed with USCIS.  Of course, there are temporary visa categories that permit the university to employ the foreign national while the sponsorship process is underway.


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