Green Card for Other Professionals
The standard procedure for obtaining a green card for professionals is for employers to test the labor market first through a labor certification application. A stream-lined procedure is available for "Outstanding" Researchers and Professors, persons of "extraordinary" ability, or persons of "exceptional" ability whose presence in the U.S. is in the national interest.
The labor certification process is intended to protect American labor, and the certification will not be issued unless there are no qualified U.S. workers available. The application is initially submitted to the appropriate state department of labor, which administers the recruitment process, and then is forwarded to the U.S. Department of Labor (DOL) for a final decision.
The key to a labor certification is to demonstrate that the experience and education that the employer requires for the job are essential and that its requirements cannot be met on the American labor market. Central to the process is the rule that the application will fail if a U.S. applicant for the position meets the employer's minimum required qualifications; the U.S. applicant need not be as qualified as the foreign national.
The minimum qualifications for the job must be described in terms acceptable to the DOL, and the company must affirm that it does not, for the same job or a comparable one, hire anyone with qualifications below those stated. DOL may ask the employer to cite the qualifications of others it has hired for this and similar positions in order to ascertain whether these are, in fact, its minimum requirements. If the DOL finds the requirements to be "unduly restrictive" (i.e., intended to discourage U.S. applicants or improperly tailored to the foreign national's qualifications), they will be disallowed.
The recruitment process may generate some, perhaps many, U.S. applicants and the employer must interview any who, on the basis of their resumes, appear to be qualified. Any reason for rejection of the U.S. applicant must be bona fide, job-related, and non- discriminatory or the labor certification will be denied. The employer is also required to offer workers the prevailing wage for the job, which the state DOL will determine. The wage for the job must be included in a notice of the job opening which will be posted at the work place and in advertisements for the position.
The labor certification process is likely to take between 3 and 15 months, depending on the location of the job, to run through the state and federal levels. If the labor certification is issued, the next step would involve the employer's submission to the Immigration Service of a petition, which is typically decided within one or two months. Thereafter, the applicant should be able to submit to the Immigration Service an application for permanent residence, which may take some months to over a year to process, depending on the INS district. Accordingly, the entire process could take as little as one year and as long as two and a half years. During this time, it would, of course, be incumbent upon the foreign national to maintain proper nonimmigrant (e.g., H-1B) status if he or she is working in the U.S. during the process. See H-1B for Professionals.
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