Work Visa Labor Certification: Answers to Frequent Questions

  1. Who requires labor certification?

    Labor Certification is the process through which an employer must recruit potential employees for a position and demonstrate that there are no qualified US workers for the job. As a result, they need to seek potential employees from outside the United States. The process described is commonly known as the Application for Alien Employment Certification.

    Who needs a labor certification?

    Aliens who have an employment offer in the United States and if their particular occupation preference requires labor certification.

    How do you get a labor certification?

    Applicants for labor certification need to complete the DOL Form ETA-750B, Statement of Qualifications of Alien. This form is to be sent to an employer who must then fill out Form ETA-750A, Application for Alien Employment Certification and Offer of Employment. The employer will file both forms with the State Employment Service in the area where the work will be done. The employer will be notified by the Department of Labor as to approval or disapproval. Notification will then be given to the applicant.

    What occupations are assigned “Schedule A” designation?

    A “Schedule A” designation means you are required to have labor certification to show that you are filling a need for specific qualified workers in the United States where a shortage of available employees exists. Schedule A, Group 1 includes physical therapists and nurses. Schedule A, Group 2 includes those aliens who work in the sciences and arts and show exceptional ability in their profession (performing arts are not included.) When applying for Schedule A designation, employers are required to submit an uncertified Form ETA-750 in duplicate as well as the 1-140 petition. These forms are submitted to the USCIS (U.S. Citizenship and Immigration Services.)

    Is there a special provision made for those occupations that have labor shortages?

    Yes, the Immigration Act of 1990 enabled the DOL to establish the Labor Market Information Pilot Program. This program can define up to 10 employment classifications where there are labor shortages. Labor certifications are issued in theses specific job areas for employment based visas. The Bureau of Citizenship and Immigration Services can be contacted for further information.

    What makes a visa petition ineligible? Are there waivers?

    Some applicants are refused or become ineligible in the interest of the health and welfare and security of the United States. Refusals are made when applicants:
    • Have a communicable disease
    • Are mentally ill
    • Have a dangerous disease
    • Are convicted criminals of serious crimes
    • Are known terrorists, subversives, members of a totalitarian party or are
    • Nazi war criminals
    • Have entered the United States illegally
    • Would not be eligible for citizenship

    Waivers may be given when an alien physician who wants to practice medicine in the U.S. but does not pass a qualifying exam. The Consular officer can advise on such waivers.

    What Documents are required when the petition is filed?

    The Consular Office will inform the applicant but primarily the following:
    • Birth certificate
    • Police certificate
    • Financial statement
    • Medical exam
    • Other civil documents

    Do all applicants have to submit to a medical exam?

    Yes. Without exception, medical exams are required for all applicants. Cost of the medical exam is to be paid for by the applicant.

    What is the fee and do they need to be included with the application?

    The cost is currently US $335 per person to process the visa application. All fees are to be paid when applying. The USCIS may charge additional fees for filing petitions.

    What happens when there are too many applicants for a certain category?

    Visas are issued in the order in which they were filed until the limit is reached. After this time, the filing date becomes the priority date. Immigrant visas are not allowed to be issued until the priority date is reached. Oversubscribed categories can require a waiting period of several years until the priority date is reached.

    Are all applicants guaranteed a visa?

    No. Assurances of a visa can not be given. Applicants are advised not to make any plans until they have been given notice of approval by the American Consular Officer who conducted the interview. Further processing may also be required which will take more time. For more information, contact the local American Consular Officer or visit the U.S. Embassy website. Beware of anyone guaranteeing that a visa will be issued to you.
    Immigration Law:
    Labor Certification

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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