Employment-Based Immigration (331-44)

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Employment-Based Immigration (331-44)


Policy: balance employer interests with protection of US workers

Statistics: employment preferences account for only about 140,000 admissions / yr.

DOL Certification Process: needed for EB2 and EB3 workers

Schedule A: presumptive “in” for certain high-need occupations (e.g. nurses)

Schedule B: presumptive “out” for other occupations – US labor supply sufficient

Labor certification for occupations not on either schedule

Must demonstrate that there is a shortage of available and qualified workers, and that hiring noncitizens won’t have adverse impact on wages / work conditions of local labor pool

Availability prong does account for where employment would be located

Prevailing wage requirement: as compared to similarly situated employers

Employer must actively recruit for US workers, advertise, interview candidates, and give legitimate job-related reasons for refusing to hire any of them

Information Industries (BALCA 1989): defining “business necessity” using a balancing approach (deference to employer assessment vs. protection of workers), 2-prong test:

Job requirement has to bear reasonable relationship to the occupation

Qualification, to be a “business necessity,” has to be essential to performance of the job duties (not that lack of such qualification would destroy business as a whole, but still more stringent than requiring only some contribution to organizational efficiency)

Labor Certification

Categories balance the need of employers to tap into the international labor market with the interest in protecting the American worker

Before non-citizen in these categories can become beneficiaries of approved visa petition, labor cert. must be secured from Dept of Labor

Employment Categories: Not all employment categories subject to market test: Only ES-2 and ES-3 (the categories which account for over majority of  people who come under employment category)

Labor Certification INA  §212: odd b/c this is the section that sets out the grounds for inadmissibility, but better conceptualized as a requirement for admission

Requirements: Employers seeking services of most immigrants who enter under employment based categories must show labor certification process (INA 212 (a)(5)(A) (i)) that:

That there no domestic workers available to perform such work and

Entry of the noncitizen will not adversely affect the wages and working conditions of similarly employed US workers.

Schedule A: list of jobs for US has chronic shortage- so clear no displacement (nurses, physical therapists and certain non-citizens w/except abilities in arts or sciences )

Able to file for visa directly with CIS, skipping Dept of Labor cert.

Schedule B: list of jobs in oversupply- no possibility of admission on basis- ** No longer applies

Labor Cert Process Generally:

March 2005: Program Electronic Review Management (PERM).  Maintains framework of Labor Cert but streamlines process by reducing gov role; paring req’d DOL document’n, using selective audit to police req’ts.

Pre-PERM: State Workforce Agencies had larger role.  ERs had to file w/SWA before commencing recruitment & report back several times. SWA participated in recruitment, made Cert determination which it sent to DOL.

Now employers required to 1) use databank (post jobs), 2) advertise in 2 papers, 3) give prevailing wage

Employers now manage their own recruitment (with more extensive documentation of efforts) which is now completed before filing Labor Certification Petition Directly with DOL.

DOL now approves or denies generally on basis of form submitted alone, rather than individual investigations (much quicker)

Rationale b/c there were sanctions attached to fraudulent certification and there could be an audit, employers would be deterred from committing fraud.

If approved- then go to CIS for visa

If rejected may appeal to Board of Alien Labor Certification of Appeals (BALCA). Judicial review available in accordance with APA.

Employee search requirements;

General Requirements: not sufficient qualified workers available at the place where the immigrant will be employed; and employment of the immigrants will not adversely affect wages or working conditions of similarly employed US workers 212(a)(5)

In practice, the employer often already knows the guy he wants (usually already working for the employer) and tailors the specifications for the job according to that individual

Search for Employees: Employer must conduct good faith job search for American Workers including:

Interviewed interested US workers and rejected them for lawful job related reasons;

Offered the “prevailing wage and is capable of paying that wage

Job requirements are not unduly restrictive.

Prevailing Wage: In Matter of Tuskegee  Univ. 1988 case -Arg that wage should be compared to other colleges funded by United Negro College Fund, not all private and public colleges.

BALCA initially agreed with similarly situated competitors approach to prevailing wage but later reversed.

By rulemaking DOL overruled BALCA- prevailing wage for colleges and research institutes divided based on funding source (public, private..)

INA § 212 (p) in 1998 incorporated and expanded DOL approach

Job description requirements

Employer shall document that job has been and is being described without unduly restrictive job requirements.

Unless  Business Necessity  job description must abide by the following:

Be those normally required for the job in the United States

Be defined in Dictionary of Occupational Titles(in the O*NET) – so that the description is consistent w/ the descriptions on O*NET.

No foreign language requirement: (Exception: In the nature of the job to have language skills (e.g., translator, employer needs someone to communicate w/ customers in another language)

Business Necessity:  In The Matter of Information Industries: Facts: Application denied on behalf of employee as unduly restrictive. (required a degree a BS in engineering and MS in Computer Science) for computer techy job.

Standard to show Business Necessity if want to deviate from standardized job titles: (codified in CFR)

Job req’ts bear a reasonable relationship to the occupation in the context of the employer’s business.

Req’ts essential to performing the job in a reasonable manner the job duties described by the employer

Balance of protecting the US worker and interest of employer

3 other standards considered and rejected:

Sec of labor had discretion to ignore any employer requirements (based on US labor protection.)

Title VII standard (although no longer VII standard: Absence would undermine essence of the business. No sizeable entity could realistically demonstrate failure of business from inability to hire one individual.

Reasonableness requirement: tend to contribute to efficiency of (very deferential- courts didn’t want to substitute their judgment with that of the employer)

Process: Same as family, except it begins one level earlier with labor certification. Adjustment of status is more common with employment-based immigration.

Labor Certification –INA § 212(a)(5)

Labor certification establishes that a shortage of available and qualified workers exist in the field at the place of intended employment, and that hiring on the offered terms would not adversely affect wages or working conditions of other workers.

Since 1965, law presumes the foreign worker is NOT needed and the noncitizen and employer must get affirmative certification. (Cause of lobbying by AFL-CIO.)

Required for preferences 2 and 3, and must be initiated by an employer. Preferences 1, 4, 5, and 2 with national interest waivers can petition for themselves.

Oddly placed in § 212 as part of the list of grounds of inadmissibility, but it’s really a ground of qualification immigrants in the employment preferences must fill. See § 204(b)

Schedules A + B: occupations outside the certification process

Schedule A – occupations chronically short of qualified U.S. workers, no individual certification needed. Only nurses, physical therapists, some noncitizens of “extraordinary ability” (previous Sch A jobs were moved into the 1st or 4th preferences)

Schedule B – occupations where the DoL finds sufficient U.S. workers and certification will not be issued. Ex: cashiers, bartenders, truck drivers.

The employer’s required showing: it engaged in good-faith recruitment aimed at qualified U.S. workers and has rejected any applicants for lawful, job-related reasons; it has offered the prevailing wage and is capable of paying it; its job requirements are not unduly restrictive.

Cannot write a job description tailored so precisely to the noncitizen that it would be impossible to find a “qualified” American worker. Matter of Information Industries (BALCA 1989)

The “prevailing wage” requirement: determined not just by job title but the nature of the business or institution, where the job is, nonprofit or profit, etc. Modified Tuskegee approach (p. 346)


the DoL’s certification is conclusive about labor market conditions

But CIS can question the noncitizen’s qualification, the employer’s ability to pay the wage/salary, and to investigate fraud and misrepresentation. Can deny visa despite certification.

Avenues for less time-consuming recruitment – the Reduction in Recruitment Procedure and limited processing review. See p. 336-37. For RIR, employer must demonstrate that opportunity is one for which there is little or no availability of potential employees, that it contains no restrictive requirements, is being offered at prevailing wage, and that adequate recruitment has taken place over the last six months using sources normal to the occupation and industry

Because certification is so long, many employers use the H-1B nonimmigrant category (which you can hold for up to 6 years) and initiate certification before that period ends.

National Interest Waivers

The AG can waive the requirement that a 2nd preference alien’s services be sought by an employer. This also exempts the person from labor certification.

Three prong test for national interest waivers:

The noncitizen will be employed in an area of substantial intrinsic merit

The proposed benefit will be national in scope

The national interest would be adversely affected if labor certification were required for the alien (“…the petitioner…must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”)

Aliens of Extraordinary Ability

This is the 1-A employment preference, and exempt from labor certification. What’s the difference between “extraordinary” (A-1) and “exceptional” (2)?

Criteria for waiver:

Must have extraordinary ability

Must intend to continue to work in area of ability

Must bring substantial benefit to the U.S.

Lists of possible evidence, like awards won, in the regulations (8 CFR § 204.5(g)-(l)) helps give some context. “One of that small percentage who have risen to the very top of the field of endeavor.” Muni v. INS (1995)