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The ABCs of Immigration - Labor Certifications, Part II
by Greg Siskind

Last time we covered traditional labor certifications and their requirements. This week we address other types of labor certifications.

REDUCTION IN RECRUITMENT

If the employer has made attempts to recruit for the position prior to filing the labor certification application, Department of Labor regulations will in some cases allow the employer to request a reduction in the ordinary recruitment process.

These attempts must have been made within the six months before filing the labor certification, and must have been sufficient to adequately test the labor market. When submitting the request for a reduction in recruitment, the employer should include documentary evidence of their recruitment efforts, including a copy of at least one advertisement. If recruitment was attempted through an employment agency, union, school, etc., evidence of these attempts should be included. The employer should include a list of all the responses to the recruitment, as well as the reasons why none of the applicants were hired.

The SESA will forward this information to the regional Department of Labor office for a determination on the request for reduction in recruitment. If the request is granted and the application is otherwise in order, it may be approved at this point. While this makes reduction in recruitment a very attractive option, employers should be aware that there are some risks involved. For example, recruiting before submission of the application will create a later priority date, resulting in a longer wait for permanent residency. Also, unless the employer obtains accurate information on the prevailing wage, they may not be paying a high enough wage, thus causing a denial of the application.

Special Handling Labor Certifications

This type of labor certification is used for professors and teachers and colleges and universities, and for aliens of exceptional ability in the performing arts. It differs from ordinary labor certifications in that the alien worker is shown to be more qualified than any US worker who applied for the position. The process for teachers and performing artists is by and large the same, although there are some important differences.

For college and university teachers, the school must conduct a competitive recruitment for the position offered to the alien. The school demonstrates that it meets this requirement by submitting the following to the Department of Labor:

  • A statement from the employer, signed by a hiring official, outlining the recruitment procedure, the number of applicants for the position, the specific reason the alien was better qualified than each applicant, and the final report of the selection committee of the school;
  • A copy of at least one advertisement for the position run in a national professional journal; Evidence of other recruitment;
  • A statement of the alien’s educational and professional qualifications and achievements.

The labor certification must be filed within 18 months after recruitment for the position begins.

A special handling labor certification for an alien with exceptional ability in the performing arts must demonstrate both recruitment efforts and that the alien possesses exceptional ability. This is show by submission of the following:

  • A copy of at least one advertisement for the position placed in a suitable national publication, along with a detailed report on the results;
  • Evidence that unions traditionally used for recruiting in the performing arts were contacted and unable to provide any worker as qualified as the alien;
  • Evidence of the alien’s exceptional ability, such as published material about him or her, playbills, the reputation of organizations that previously employed the alien, the alien’s ability to command a high salary, etc.

Schedule A Labor Certifications

The Department of Labor has determined that there are some job occupations in which there is a chronic shortage of workers. It has “precertified” a list of specific jobs in which an individual labor certification is not required. There are two groups within the Schedule A classification.

Group I consists of professional nurses and physical therapists. Physical therapists must be fully qualified to take the state physical therapist licensing examination in the state in which they intend to work. Nurses must have passed the Commission on Graduates of Foreign Nursing Schools Examination or possess an unrestricted license to practice nursing in the state in which they intend to work.

Group II consists of aliens of exceptional ability in the arts and sciences (excluding the performing arts). Professors at colleges and universities are also included in Group II. For qualification in Group II the alien must have at least one year of experience in the field, including the year immediately preceding filing the application.

Unlike standard labor certifications, Schedule A labor certifications are not filed with the Department of Labor. Instead, they are filed directly with the INS along with the petition for an immigrant worker. The INS will adjudicate the Schedule A, making it important to submit evidence necessary to show all requirements for the classification sought. If the INS denies the Schedule A labor certification, it cannot be appealed as can other labor certification denials.

Graduates of Foreign Medical Schools

Graduates of foreign medical schools, other than those in the EB-1 extraordinary ability category, who are not subject to the labor certification requirement, and those in the EB-2 category for whom the labor certification requirement has been waived, can often be classified in Group II of Schedule A.

If the position offered involves hands-on patient care, the alien must show that he has passed Parts I and II of the National Board of Medical Examiners Examination or the Foreign Medical Graduates Examination in Medical Science. He must also possess an unrestricted license to practice medicine in a US state.

If the position does not involve patient care, the Schedule A labor certification does not require the alien physician to have passed any exam or possess a license to practice medicine in the US. However, INS regulations to require graduates of foreign medical schools to pass these exams to work as any type of a medical professional. Because the Schedule A is submitted directly to the INS along with the immigrant petition, the exam must be taken before then.

Schedule B Noncertifications

These are occupations in which the Department of Labor will not issue a labor certification. The Department has predetermined that there are a sufficient number of able, willing, qualified and available US workers for such positions, and that allowing foreign nationals to take such positions will adversely affect working conditions of US workers similarly situated.

As a general rule the occupations listed on Schedule B are unskilled and require little or no training or education. There is generally high turnover, low wages, long hours and poor working conditions in the listed occupations.

In some situations a waiver can be obtained it the employer can show the Department of Labor that there is in fact no available US worker. These waivers are difficult to obtain and are rarely given.


About The Author
Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues. After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM Publishing Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com. .



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