The Importance of LC

Posted on 6月 05, 2006 by Warren Wen | Category: Immigration

Is Labor Certification Necessary?  Labor Certification vs. Work Permit

There are relatively few ways for an alien to immigrate and remain permanently in the United States.  If the foreigner does not have any close lawful permanent residents or U.S. citizen relatives, has not received refugee or political asylum status, or does not have enough money to invest in a business, basically he is left with one alternative, which is employment-based immigration.  This is often a time-consuming, difficult, and very expensive process.  But if he qualifies, and if he is successful, he will be given a great opportunity to live and work in the United States.

In most employment-based immigration cases, employer is required to demonstrate that there is a shortage of U.S. workers by going through a process known as labor certification.  A labor certification is a notice certified by the Department of Labor that an employer has proven that there are no qualified U.S. workers who are able, willing, qualified and available to accept the job at the prevailing wage.  Employer also needs to prove that employment of alien workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Labor certification does not necessarily require the alien worker to be in legal status in order to apply.  However, by itself the approval notice for labor certification cannot do anything for the illegal immigrant either, and many seem to be puzzled by this fact.

Mr. Lee, an illegal immigrant for several years, has recently been notified by his employer that his labor certification was approved.  Excited by the news, he wanted to know legally how soon he could start working for his employer.  Unfortunately, an approved labor certification does not allow alien workers any legal right to work within the U.S., nor does it provide any legal status within the U.S.  In Mr. Lee’s case, he would not be allowed to work legally in the U.S. unless he had an employment authorization (more commonly known as work permit), which would allow him to legally work while his application for green card is pending. In order to be eligible for a work permit application, Mr. Lee’s employer would first need to have a visa petition (I-140 Petition) approved for him.  Only after he had a visa petition approved and a visa number was available for him, he would be able to file a green card application.  This may take several years.

In other words, an approved labor certification will not provide work authorization, nor will it legalize or extend a person’s stay in the United States.  If a foreigner is legally staying in the U.S. and is applying for a green card, for example, as an H-1 temporary worker, he may need to maintain that legal status until the rest of the green card application process is completed, in order to work legally in the U.S.  It would have nothing to do with his legal nonimmigrant status or to the continuation of his legal stay in the United States.

Then, what does an approved labor certification exactly mean?  If the labor certification does not provide any legal rights or status to work in the U.S., why does one need to go through the labor certification process?  It is simply because this labor certification is merely the first, but a very important step towards obtaining green card.  In addition, in all employment-based cases requiring approved labor certification, the date on which the alien worker first filed qualifying labor certification would determine their priority date.  And, based on this priority date, the date when the alien can actually file his application for green card will be decided.

After the approval of the labor certification, there are other steps which need to be followed in order to obtain the permanent resident status.  It is important that the foreign workers understand this difference between the labor certification and the employment authorization in connection with his application for green card.  Although it may seem like there is no practical use of labor certification for the alien workers, it needs to be reminded that this labor certification is one of the three steps often necessary for getting a green card through employment.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.