What is a labor certification?

In my column This week's Consulta Migratoria® answers a question from a reader who wants to know what a labor certification consists of when trying to obtain permanent residency through employment.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

This is the column:

I am an Italian food chef at a restaurant in New York. I have three years working as a chef, including one year with my current employer. The restaurant where I work wants to sponsor me for permanent residency and they have told my employer that they need to get a labor certification to ask me. Is this true? -Jose C.

Jose, if your employer wants to sponsor you and you meet all the requirements, you may be able to obtain permanent residency. These kinds of immigration procedures are complicated and you should proceed with great caution, especially if you have been living in the U.S. undocumented.

Employment-based visas for permanent residence are divided into five preference categories, including the Third Preference (EB-3) category, which is reserved for skilled, professional and unskilled workers.

As an Italian food chef, you may be categorized as a skilled worker. To qualify under this category, you must prove that you have a minimum of two years of training or work experience.

To initiate the process, your employer will need to obtain a labor certification from the U.S. Department of Labor (DOL).

The purpose of the labor certification is to demonstrate that there are not enough U.S. workers available, qualified and willing to fill the position you would be offered at the current salary, and that it will also not harm the wages and working conditions of U.S. workers in similar jobs.

To obtain labor certification, the employer must complete an Application for Permanent Labor Certification. This application must describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the job for which he or she is applying, as well as a summary of the foreign worker's qualifications.

The employer will have to request and obtain a prevailing wage determination for your occupation from the National Prevailing Wage Center and include that information on the form.

The employer has the obligation to pay at least the wage indicated by the federal government and to demonstrate that it has the financial ability to pay that wage.

The process of obtaining a labor certification can be time-consuming and costly. The employer must be willing to pay certain expenses and provide financial information to the federal government.

In your case, obtaining a labor certification could be the first step in the process of obtaining permanent residency through work.

Next, your employer will need to file an Immigrant Alien Worker Petition with the U.S. Citizenship and Immigration Services (USCIS).

If that petition is approved, you may be able to apply for permanent residency inside or outside the United States, depending on your situation.

Jose, please consult with an immigration attorney before initiating the process to be sure that you and your employer meet all the requirements.

For more information and immigration tips, read my blog InmigracionHoy.com.

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States) and host of immigration television segments for El Abogado a Tu Lado on NY1 News. He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.