Immigration Safe Harbors

There’s a typhoon on the horizon, and the eye of the storm is in Washington D.C.. Since Proposition 187, we can already feel the Front of the Storm in California. However, there are still a few of safe harbors left for Cabians; Suspension of Deportation is one, and Labor Certification in another. Those who have work authorizations through LULAC, CSS, an Asylum application, Temporary Worker Status, or even based on an appeal of a Deportation Order have an opportunity to obtain permanent residency through a job offer.

This safe harbor may still be unavailable even if an alien does not have work authorization, although the case will be more complicated. He or she might be able to find an employer who is willing to petition. However, if the alien is already on the employer’s payroll (tax deductions), a Labor Certification application might trigger an enforcement visit by the Immigration Service.

For aliens without work authorization, it may be better to seek a labor certification from a friend or relative employer who has a legitimate job opening. The rules of the labor certification process are designed to ensure that foreigners do not obtain permanent residency through the labor certification process. However, a skillful and experienced lawyer can steer past these obstacles and win 95% or more of these cases. A high degree of success can only be obtained through the skills and knowledge of an experienced attorney. If a law firm uses only secretaries and paralegals to do the case, the outcome is substantially less certain.

The Department of Labor requires the employer to establish that qualified U.S. workers are not available. The employer’s job description and requirements may eliminate many U.S. applicants. However, the employer’s requirements cannot be overly restrictive. Setting forth the minimum requirements is one of the most important aspects of a successful labor certification and requires a great deal of skill, knowledge and experience. An experienced practitioner will know how to set forth the minimum job requirements with enough specificity to eliminate unqualified workers, without risking a denial by the Department of Labor for making the prerequisites overly restrictive.

The second important element of the Labor Certification is determining the prevailing wage for the particular job. If the EDD is left to determine the “prevailing wage,” it’s likely to arrive at a figure substantially higher than the actual prevailing wage. This will obviously attract many more applicants and diminish the chances of success. The law firm handling a Labor Certification should therefore have the resources to establish the correct prevailing wage through independent wage surveys, and not rely on EDD surveys.

The job offer must be advertised, usually in a newspaper of general circulation such as L.A. Times, for 3 consecutive days, using a “P.O. Box” address. Interested applicants will send their resumés to the P.O. Box which in reality is the Employment Development Department (EDD). The EDD then logs the information of each applicant and forwards the resumés to the attorney for recruitment.

Each applicant who appears from their resumé to meet the minimum requirements must be personally interviewed by the employer. The employer must be aware of all the core requirements of the job offer in order to properly question and document why each job applicant is not qualified. Each applicant must be thoroughly interviewed. The employer may even have to contact prior employers to determine if the applicant was completely candid in their resumé. Of course, the job applicant’s dishonesty is always a valid reason for rejecting an applicant. In other words, even when an applicant appears to be qualified, there may be legitimate business reasons to disqualify the applicant that are acceptable to the Department of Labor.

The employer must therefore fully document each and every step of the recruitment process. This should include contacting the applicant via certified mail and requesting a return receipt. Also, the time and date of every telephone contact with the applicant must be included in detailed notes to assist the lawyer in preparing the final recruitment results letter. After the employer sends the recruitment results to EDD, they will send an inquiry form to each applicant to ensure that no U.S. workers were rejected for any improper reasons.

There are no short cuts or substitutes for experience and just old fashioned hard work in the labor certification process. Finally, it is very important at the outset to establish that the job requires at least two years of college or two years of post high school training or two years of prior experience. In other words, the job offer must be for a skilled worker or professionals.

If the job requires less than these basic requirements, INS will classify the Immigrant VISA petition as EB-3 (other workers) which will result in an approximate 10 year wait for a Green Card. Of course there are many ways to title a position and to examine the job duties to ensure that it comes within the category of a skilled worker.

Two years of experience or more is determined based on what is the standard in the industry. For example, it may be unreasonable to require two years prior experience for a Janitor or Security Guard, but not so for the Supervising Janitor or for the Security Guard Supervisor. Positions such as Bookkeeper or Secretary or Clerical personnel generally fall in the “two years experience or more” category.

A successful Labor Certification can usually be completed within one year. The alien, their spouse, and all children under twenty-one will be granted Permanent Residency status (green cards), approximately six months later if the job is still available. Remember, a Labor Certification requires a skillful captain to navigate through these rough waters and steer your ship to that safe harbor.