Listen as we talk about the ins and out of the Labor Certification Process used for EB2 and EB3 green cards.
Labor Certification process in a nutshell:
The EB2 Visa (or EB2 Green Card) – Employment-Based “Exceptional” Ability or Advanced Degree Permanent Residence (Second Preference).
The EB3 Visa is a permanent residence US visa/Green Card for “Skilled, Professional, or Other Workers.” There are three routes to qualification:
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Dave Kelso: Hi there. I'm Dave Kelso. I'm your host for onlinevisas.com, The Immigration Show. Here with me today, OnlineVisas.com CEO and lead attorney, Mr. Jon Velie. Jon, how are you?
Jon Velie: I'm great, Dave. How are you?
Dave Kelso: Well, it's fantastic to be here with you today. I've been wanting to talk to you about this for a while. I know this is going to seem like a strange thing for me to say, but I want to talk to you about Labor Certification green cards.
Jon Velie: Not that odd.
Dave Kelso: Okay. I want to talk about Labor Cert green cards for companies. They're also called PERMs, the labor cert process, and they're the EB2, EB3 Permanent Residency green cards. That's what I'm curious about. Can you take me through your process, the steps that companies go through to do this?
Jon Velie: Okay. Well, all right, so let's start with what an EB2 and an EB3 are.
Dave Kelso: Let's start there.
Jon Velie: Okay, so the EB2 are for advanced degree professionals, so Master's degree, PhDs or folks with five years or more experience.
Dave Kelso: Okay.
Jon Velie: EB3's are for Bachelor's degree holders or even a skilled level. All right, now what goes into these types of green cards, permanent residency, green card immigrants, those are all synonymous. But to get one of these rights to live here permanently, the company has to advertise. That's what the PERM process is.
Dave Kelso: Labor certification.
Jon Velie: They have to do a Labor Certification. So what they're doing is they're going to sample a job market to find out if there are any Americans or green card holders that are willing or able to take the job.
Dave Kelso: Okay.
Jon Velie: Okay? So, they do this in five different ways. But before we start sampling, we have to make sure that the job is going to offer the requisite amount of money, which is called the prevailing wage. The first step is to send a request to the National Prevailing Wage Center, which these have been taking a long time, anywhere from about six weeks to six months, just to get this back. So anyway-
Dave Kelso: Prevailing wage, it's a static number, right?
Jon Velie: It's a static number, there's a lot of data-
Dave Kelso: How come I can't look this up online?
Jon Velie: Well, you can look up numbers that are similar to it online. The FLC Data Center was one we'd used for years before the National Prevailing Wage Center came out. But in any case, they won't accept that, so you have to send it to them, and that's just the way it goes. So anyway, when that comes back, then you can start your advertising because you've got to know what the pay is for the job that is going to be offered. There are a couple of things you have to do.
Jon Velie: The first thing that a company needs to do is determine the job requirements, not just the duties. So the requirements are the things that are there so you can determine if there are any Americans willing or able to take the job.
Dave Kelso: Sure.
Jon Velie: So you don't want to just say he has experience in something, because if they do it for one day, they have the experience, don't they? So you want to come up with two years' experience, right?
Dave Kelso: Right.
Jon Velie: And in a particular skill set that needs to be substantiated by proof that the potential employee actually worked there. So letters from companies, now they don't have to still be with the company. The person that writes the letter, sometimes that happens or somebody at the company that was in supervision that was overseeing them can do it as well. Also, contracts or payslips, things like that could help. But the letter is really critical because it can talk about this specific skill. That they had two years in this specific skill.
Jon Velie: Now, one of the things that you need to remember, that inexperienced folks don't remember sometimes or don't know, is that you could have five different skillsets. If you're saying that each of those five skill sets were learned concurrently, they don't have to be on top of each other. So it's not two years doing this skill and then the next two years doing this skill and the next two-
Dave Kelso: It's two years, not four.
Jon Velie: Yeah. So you can say, these four skills were all learned concurrently in one job or two or three jobs or whatever it is. Concurrently is the magic word. Finding out what you want the minimum requirements to be is really important. And you have to sort of look at a few different things. Because if you make it specifically to the potential employee, that's called tailoring.
Dave Kelso: And we can't do that because that is deliberately trying to keep Americans out of the mix.
Jon Velie: Yeah, you can't say I want a five-foot 10 guy with glasses who speaks a foreign language. Now, foreign languages or are many times a red herring. They are a red flag that can create an audit. So if a foreign language is a requirement of the job, there are a couple of ways you can do it. One is the clients speak a foreign language. Like we had once a young lady that worked for a bank that had branches around central and South America and she needed to communicate with them. It wasn't just her mere ability to speak Spanish that was important. It was her financial background and experience in there. But speaking Spanish was also important.
Dave Kelso: And speaking Spanish.
Jon Velie: Those are important things to know. Now, if you have something like that, one of these red flags, you need to put it in what is called the business necessity part of the Labor Cert Form. So those are things to look at too. Now, we're ready to start advertising. We need to look at a couple of things. One, how has the company advertised for the job before?
Jon Velie: If the company has always been advertising that the employee just needs a bachelor's degree without any experience then asking for two more years of experience or a master's degree-
Dave Kelso: That's unreasonable.
Jon Velie: ...It could be a problem, it could be a problem. So you need to look at it and say, "What's different about this job than those other jobs?" Maybe because it's a managerial job. Maybe you got a big contract with somebody that has some very sophisticated things and you need to have that number. So it's not a no, you just need to be able to show those things.
Jon Velie: The next thing is certifications. So if somebody is certified in, I don't know, some skill that they went out and got from some association, you can use that. Now, there is an exception to using experience and certifications. That is if the company hired that individual on an H1B visa and then they obtained that experience and those certifications working for their company – can't use that. The reason behind it is that they could have trained in American to do that. That's the logic behind it. It is what it is.
Dave Kelso: And it kind of makes sense.
Jon Velie: Well, it does. So, you can use the certification if the job they're going to be in is 50% different than the job they were in. But that's a question. And when there's a question, sometimes there's a problem. So you need to look at that closely. You could have related companies where they could have worked for company 'A' and gotten the experience and now they're going to work for company 'B' and that's okay. So those are exceptions to the exceptions. So this is what lawyers do.
Dave Kelso: This is what we need you for.
Jon Velie: That's right. So in any case, after we've gone through the requirements, we now have a... Now, that we've talked about it, requirements, we have these requirements based on education – may be a bachelor's degree in something. It needs to be open to related fields though. So if you have computer science, you need to put an unrelated field.
Jon Velie: So if somebody has computer engineering, something that is somewhat similar to it and can draw from that, you have to let those people come too. Okay, so you have your employment background, a couple of years, maybe you have your experience and you have your certification. You're going to look at, we've just said what you've done. You can also look at what other companies do. Go to Monster.com, Indeed any of those places or look at how our other companies-
Dave Kelso: How is this commonly done.
Jon Velie: What's the experience needed. And then the third is called an SVP rating. And this is what a lot of inexperienced attorneys don't realize is out there. So the SVP rating is Standard Vocational Preparation. The Department of Labor says for this type of degree, it might be a bachelor's plus two years experience or a master's degree. So if the company is saying a bachelor's plus five years experience-
Dave Kelso: That's a problem.
Jon Velie: It can be. Business necessity, we talked about it a minute ago. You can say, "Look, we are a bank and we're building some financial software for Fortune 500 companies that we need blockchain and all this really advanced technology because these guys are putting, millions if not billions into our bank. You can't just have two years experience you've got to have five years experience to do this sort of thing." And we have others that have done it but it needs to make sense and that's what you do. But if you don't know that the SVP rating is out there and you're just like, "Oh, this person has seven years experience, so let's ask for seven years experience," then you'll get an audit that'll say, can you tell us the business necessity-
Dave Kelso: To justify the seven years.
Jon Velie: Right. And it's hard to do that. Not going through this and the strategy at the beginning because you just got to think about that.
Dave Kelso: You don't know what to say.
Jon Velie: You don't know what to say and it's hard to answer that question from that point. So, thinking about those different things when you're coming up, your requirements are important. Okay, so we've got the requirements, now we know what the prevailing wage is, now we need to advertise.
Dave Kelso: Now we need to advertise.
Jon Velie: Okay, so there are five ways to do this, right? So there are three that are called mandatory. One is the state workforce agency and for 30 days it goes into that. Some state workforce agencies require you to put in the salary, some do not. The other is posting it at the location, the work location.
Dave Kelso: Like in the conference room of the break room or that sort of thing.
Jon Velie: Yeah, something conspicuous.
Dave Kelso: Where it usually is.
Jon Velie: And not behind the bathroom door. And then that needs to stay up and is signed off and that needs to have the salary in it for sure. Okay. So your workers at your company need to know that this job is there. And then the third one is two Sunday newspaper ads in the largest newspaper in the metropolitan statistical area.
Dave Kelso: This sounds like an expensive process.
Jon Velie: It can be. It can be a few thousand dollars to do this and that has to be paid for by the company. And this whole process has to be managed by the company, not the intending, foreign national. And sometimes the foreign national will come to us and say, "Hey, I've got a company that will sponsor me for the green card." And we said, "That's great. Good job."
Dave Kelso: Then call us.
Jon Velie: Well, we can call them, but we need to have that relationship with them. They need to be in charge of that process. They need to be the people that are looking at the resumes that come in. Okay, so you run those three and then there are about three more that you need to do and there are like eight choices.
Jon Velie: So you can spend a lot of money on a TV ad or radio ad. Not a lot of people do that, but a trade journal is good-
Dave Kelso: Sure. Make sense.
Jon Velie: ... Another, a local newspaper can work. You can put it on the newspaper's website, outward-facing on your company website. Then there are some schools that will have job fairs. There are a number of different things you can go through to pick these out. So when you get all of those, the longest one is 30 days. So you can run lots of them in those 30 days and then there's a 30-day quiet period. One of those can run into the quiet period and then it's during those 30 days in a quiet period that the company is accepting the applications-
Dave Kelso: Application, setting up interviews and all that.
Jon Velie: Right. So when they get the applications somebody at the company has to look at them and make the decision. They can't just send it directly to the lawyers, but the lawyers can talk to them about it and determine whether they think this person meets the minimum qualifications. And if they do, then you have to have the interview. When you have the interview to ask them if they actually have the requirements. A lot of people puff their resumes and they won't have a year of experience.
Dave Kelso: Really.
Jon Velie: I know. Shocking.
Dave Kelso: Shock.
Jon Velie: Right. So in any case, when that's done, sometimes companies will say, "We need a number of people or if others come forward, we'll hire them too." So if an American comes forward or a green card holder comes forward, they don't have to hire them. But if they don't hire them and they meet the minimum requirements, they can't hire the foreign nationals that are intending.
Dave Kelso: And if they hire the foreign nationals, they've got to hire the other guy too.
Jon Velie: Well, the other way around, if they hired the other guy, then they can hire the foreign national. And then that's the situation. So once you get past that, and if there aren't any people that come forward that they don't hire, then the company files that with the Department of Labor. And that's called the Labor Certification or the Labor Cert and that's DS989 and you fill it in and note the business necessity we talked about and that takes about six months.
Jon Velie: Well, this is a slow process and then when that comes back you can file the I-140, which is with USCIS and that's when you put in the evidence that the employee meets the qualifications. That they have the requisite experience, education and stuff like that. Now, that is not the time to ask them if they had the experience or to get the proof. So you may have asked them if they had the experience back when you're running the ads and they come forward and they go, "You know what? I can't get a letter. I can't get any proof of that." Because if they don't meet the qualifications, they can't get their green card either.
Dave Kelso: Exactly.
Jon Velie: Or the job. So I'm at that time, you want to already have those letters. So you have this all kind of put together and when the Labor Cert comes back approved, off you go to the I-140. Now, priority dates are an issue that is tricky for some countries. Right now is an excellent time to file these green cards because so many countries are current. Meaning you can file the I-140 and the Adjustment of Status, which is the process that allows you to move from like an H1B to another visa.
Dave Kelso: H1B, EB2.
Jon Velie: Yeah, EB2 or EB3. If you can do that, then at about four to seven months you'll get a work document working card. EAD is what's called Employment Authorization Document and a travel card also called advanced parole.
Jon Velie: But the whole process can take as quickly as six months. So you can kind of do those things together. You can file the I-140 with premium processing will be two weeks. And a lot of people think that means everything but it only means this one form. So the other part takes longer. But if you have somebody who's out of the country, you might want to do the premium processing on the I-140 because then they can do their consular processing, which is when the approval gets sent out to the national visa center, which then sets an appointment in their home country. They go in for an interview and then they come in.
Jon Velie: So right now, with all that time, you're looking at about a year and a half, maybe two years. There are a lot of different pieces to go. Now, the priority dates we talked about for some countries are much longer. So India is slow right now. China is slow right now. They're backlogged.
Dave Kelso: Define slow.
Jon Velie: Seven years.
Dave Kelso: How is the company supposed to know that they need to hire somebody six months from now, two years from now, seven years from now?
Jon Velie: Well, a lot of companies recruit foreign talent because foreign talent is really good in their area and they need it – in the tech industry in particular, but not limited to medicine, higher education, things like that. Now the H1B visa is six years, but if you file to initiate the labor certification process for the PERM before the end of the fifth year, then you can extend the H1B visa in one year increments until the I-140 component gets approved. Then you can do it in three-year increments. And then what they've done for those folks, is the spouses of those H1B holders called H4s can get EAD cards. So they can have two incomes.
Dave Kelso: So the wife can work too while they're trying to survive. In Menlo Park, California.
Jon Velie: We have a number of people on EADs, will open companies. They're entrepreneurs hiring lots of Americans. So, those are the things. So in a nutshell, that's the process right there. It's complicated. It's hard. There's a lot of ways to mess it up. There's a lot of trap doors. So, working with companies to know how to get through that thing is what we do. And we give out free strategies.
Dave Kelso: It sounds like you're very necessary in this because while you were explaining this process, I hear lots of "Well, yeah it could, but it doesn't have to. Well, yeah, maybe, but no. Yes, but maybe." So it sounds like a good immigration attorney is not just recommended, but probably required.
Jon Velie: Very few companies that we know of do this without them. But some do. They may do so many, they have an entire internal process. OnlineVisas is support for those folks as well. We worked with a lot of companies. They'll get an odd, weird case and we'll come in and help on those. So, whether experienced or not, it's tough. And being advised on that is always a good idea. But we often do lots of them A to Z.
Dave Kelso: Well, let's give the call to action here. If I'm a frantic HR director and I need to talk to somebody about EB2 and EB3 and maybe I want to get the Labor Cert process going with somebody. How do I get ahold of you to do that?
Jon Velie: Come check out OnlineVisas.com, if you go there and you look at visas, you can see a breakdown of each of the different types of visas. Go to the EB2/EB3 visa we have videos, we have these things on there, articles. Come check that out or contact us and set up a strategy session from there. We're glad to talk to your company, glad to show you how we do what we do and love to work with you. Glad to talk to the individual who just doesn't know, what they should do and those strategy sessions are free as well. Or you can email me at email@example.com That's J-O-N@V-E-L-I-E-L-A-W.com. The phone number is (405) 310-4333 and check us out.
Dave Kelso: Of course, you can also find those on YouTube. Please subscribe if you're watching there, follow us on Facebook and we've got a LinkedIn page as well. All of that here on the screen for OnlineVisas.com: The Immigration Show. I'm your host, Dave Kelso. That's Jon Velie. Thanks for watching.
Jon Velie: Thank you.