Labor Certification – Ever Heard of It? – Part Two

It is possible for aliens to find employers who will sponsor them for skilled jobs – jobs requiring two years training or qualification – right up to Advanced Degrees such as an MA or PHD. In so doing this enables the alien to acquire a green card.  Employers must first prove to the satisfaction of the Department of Labor that the employer has been unable to find local qualified Americans to fill the vacancy.

Quotas and the Prevailing Wage

On the one hand, US Immigration (USCIS) want US employers to fill vacancies to maintain production, but on the other, USCIS does not want to draw in hundreds of thousands of migrant workers from around the world in such numbers so as to depress the local wage economy. For example, an MA graduate from Mumbai, India currently commands a salary of about $300 per month, whereas in the US that same person could command a salary ten times that amount.

Therefore, it would be very attractive for IT companies (for example) to hire ten technicians from India and pay them well below the US average and for the Indian this would still be a massive pay bump, plus have the benefit of experiencing the American Dream. To prevent such tactics by US employers USCIS established annual quotas and a requirement as part of the Labor Certification process that US employers must be prepared to pay the prevailing wage to the alien they sponsor.  So if you ever wonder why large US companies outsource their work to India and other developing countries around the world rather than attract or help relocate them to the US, this is the reason: they are restricted by quotas and the prevailing wage.

Quotas and Processing Times

USCIS has said that for each of the three EB green cards under discussion here – the EB1 for Extraordinary Aliens, the EB2 for Advanced Graduates and the EB3 for BA and AA degree holders – the quota would be set at 40,000 green cards per year. USCIS also implemented a ‘trickle-down’ policy so that the unused green cards from the EB1 category would ‘trickle down’ to the EB2 and the unused green cards from the EB1 and EB2 would ‘trickle down’ to the EB3 visa applicants in any given year.

As you can imagine due to the high qualification restrictions on the EB1 green cards these are typically not exhausted in any given year so they are generally always available. The same is almost true for the EB2 category, however, in some years this quota has been exhausted during the fiscal year which, for Immigration, runs from October 1st each year. The EB3 is often over-subscribed and when this quota is exhausted all subsequent applicants get put in a queue for the following year.  At the time of writing this article, the visa bulletin website shows that EB1 green cards are available right now for anyone, as are EB2 green cards (with the exception of applicants from China or India). However, for the EB3 the backlog goes to cases that were filed in January 2005. You still have to file now to at least get in the queue but know that the wait will be over three years.  The reason for the backlog is simple – there are many more people who have a degree than have a PHD. BA holders may want to take a year in the US getting an MA and then become eligible to apply for an EB2 which has no backlog rather than the EB3 that does.

In Part Three we will look at how, having found a suitable employer, we begin to prepare a case.

ECI

US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
401 Wilshire, 12th Floor
Santa Monica,
California 90401
Tel: 310 496 4292