For the EB-2 and EB-3 categories, a labor certification and employer sponsorship is required. Again, the only exception is the previously discussed national interest waiver for the EB-2 category. Labor certification is the process whereby the U.S. Department of Labor (DOL) certifies that (1) there is a shortage of minimally qualified U.S. workers for the position offered and (2) the offered employment does not adversely affect the wages and working conditions of U.S. workers. The basic requirements for labor certification are:
- Full-time employee. The employer must hire the foreign worker as a full-time employee, not part-time.
- Permanent job. The employer must offer a permanent position.
- Reasonable job requirements. The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed. In addition, the employer must establish that the educational and experience requirements are not “unduly restrictive.”
- Salary offered must be the higher of prevailing wage or actual wage. Like the H-1B requirement, the employer must pay at least the “prevailing” wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. The State Workforce Agency (SWA) of the state of intended employment determines the prevailing wage. In addition, the employer must pay at least the “actual” wage which it normally pays to its own employees who are similarly qualified.
The Application Process
Obtaining an employment-based visa can be a long and arduous process that can take years, even for physicians. For most EB-2 physicians, the first step is for the employer to file a labor certification with the Department of Labor (DOL). The DOL in Atlanta generally decides an application within 9 to 12 months of application, but sometimes the process is longer.
There are stringent recruitment procedures that the employer must follow before an application can be filed and approved. For a professional position like a physician, the employer must engage in extensive recruitment, including two Sunday newspaper advertisements, placement of a job order with the SWA, paper and/or electronic posting on site, and three other forms of recruitment that are included on a list of ten recruitment types by the Department of Labor. These recruitment efforts can be conducted no later than 180 days before filing the labor certification application.
Physicians who will teach as well as perform clinical and teaching duties and who are employed by universities may qualify for optional special recruitment (“special handling”) labor certification. There are several advantages to special handling. First, the recruitment requirement is considerably less stringent. Only one advertisement for the position run in a national professional journal and an onsite job posting are mandated. Second, the application for labor certification can be filed up to 18 months after the physician is appointed to the position. And, most importantly, the DOL will not reject the labor certification even if qualified U.S. citizen or permanent resident physicians responded to the recruitment, so long as the employer can show that the alien physician was the best qualified applicant.
PERM applications, including special handling applications, can be filed electronically or by mail using form ETA 9089. If electronically filed, the employer must obtain a PERM account from the Department of Labor before the application can be filed. Once the labor certification has been approved, then the second step is for the employer sponsor to file a Petition for Immigrant Worker, Form I-140. The final step in the green card process, the filing of the I-485 application, may be take place if there is a sufficient number of immigrant visas available and the I-140 petition has been filed or approved.
Caveat for Former J-1 Physicians
Physicians who held J-1 status and received a government-sponsored waiver of the two-year foreign residence requirement must complete the entire three years of required medical service before they can apply for adjustment of status or consular processing. For example, let’s suppose that Dr. Smith began his three-year service for his J-1 waiver on January 1, 2016. His employer immediately started the labor certification process to sponsor him for a green card and obtained an approved I-140 on June 30, 2016. Unfortunately, Dr. Smith cannot apply for adjustment of status or consular processing until January 1, 2019 – the end of his three-year service requirement.
The only exception to this rule is for physicians who apply for a National Interest Waiver for physicians. In this case, the physician may file the I-140 and the I-485 concurrently, even though he has not completed three years of J-1 waiver service. However, the I-485 will not be approved until the physician has fulfilled his five-year medical service obligation as required by the National Interest Waiver. Nevertheless, the ability to file the I-485 is a real advantage because the physician’s spouse will obtain an employment authorization document (EAD) which will allow him or her to work during the years that the I-485 is processed. For many physicians, this is the only way their spouse can work with authorization.
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