A business or individual can “sponsor” a person for permanent residence in the United States through “work.”  Besides applying through a family member, the labor certification process, as it is called, represents the main way in which you can apply for permanent residency in the US.  In this process, the sponsor requests permanent residence for a current or future employee based on their working in a specific job in the US for which there are insufficient US workers.

Who can be a Sponsor

Almost any one who has a business can be a sponsor.  The sponsor must be willing to sign a job offer, must have sufficient net income, and must be willing to hire you once you obtain permission to work in the US.  The sponsor has no financial obligations or contract to employ an individual over time.  The sponsor only offers an individual employment based on their qualifications and based on certain criteria in the process.  The sponsor can also always withdrawal an application, therefore it is recommended that you keep in good relations with your sponsor.

Who is Eligible

Almost all individuals who need to apply for a green card are eligible to obtain one through labor certification.   You must have experience working in a specific occupation from Poland or from a company different from that which is sponsoring you.

If you are in the US legally, and can remain so for a period of 1 to 2 years, then you can complete the first two stages of the process, obtain your work authorization, and then eventually your permanent residency through labor certification.

If you are not legally in the US now, you can begin the labor certification process, complete the first two stages of the process, and then wait for a change in the Immigration Laws.  Persons who are unlawfully in the US and applying through this process, will not be able to begin the third stage of the process, in which they obtain work authorization, until the current immigration laws change.   Such a change would include, for example, the extension/renewal of Section 245(i) or any other provision that would allow persons to complete their application process. 

Why Should I File?

If you have an employer or are aware of a company that is willing to sponsor you, we generally recommend that you begin the labor certification process.  The completion of even portions of this process is an important step in your obtaining permanent residency and eventual citizenship in the US.   Should you encounter an unfortunate situation with Immigration, it is recommended that you begin some process in order to legalize your status.  The labor certification process is often the best way to proceed.

The Process

There are three stages in this process: 1) Job Offer, 2) Approval, and 3) Immigration.

1.      Job Offer – An application is prepared for labor certification and includes a wage determined by the State of Illinois to be an average wage for someone working in the position.  (You/your company will not be required to pay the individual this wage until stage 3).   The employer will need to provide their Illinois Unemployment Insurance and/or tax identification numbers. 

i.     Recruitment – Testing the Job Market– The employer or attorney, then must place advertisements in a major newspaper seeking applicants for the position. If anyone responds to the ads by contacting the employer, the employer must determine if these individuals are qualified for the position. 

2.     Approval – Once approved by the State and Federal Department’s of Labor, paperwork is prepared for filing to the Immigration Service.  The employer usually must provide its tax returns for the period of time in which the application is pending.  This is required in order to show that the business has sufficient income to pay the offered wage.  As a general rule, the Immigration Service expects that the sponsoring company will have sufficient net income on its tax return to exceed the amount of the sponsored individual wages

3.     Immigration -  Once the petition is approved by the Immigration Service, applications are prepared that would grant the applicant permanent residency.  Along with these applications is a work authorization card.  If not already earlier, from this time, the individual should be employed by the sponsoring company as a regular employee (not independent contractor) in the offered position & earning the prevailing wage as set in #1 above).  The individual and their family receive permanent residence, the process is complete.  If the individual is overseas, they will obtain a visa to travel to the US, and then should be employed at the sponsoring company on a full time basis once they arrive in the US.

The requirements of the labor certification process are somewhat complex.  Therefore, we recommend that the process be completed by a law firm, such as our own, which has experience in dealing with labor certification cases and is aware of these complexities.

In addition to the complexities are also several factors which help speed up the process of completing a labor certification.  These factors will be detailed in subsequent articles. 

As we have seen, a lot of immigration related legislation is needed to pass in Congress in order to complete this process.  That is why, I highly recommend that you or your relatives who are in the US and who can vote, to contact their Congressman, explain the situation and seek immigration reforms that truly benefit the people.