| Within the employment-based preferences, there are five subcategories of immigration. The majority of workers in two of those classifications, EB-2 and EB-3, must have a labor certification from the U.S. Secretary of Labor before they may be granted visas. This is designed to protect U.S. workers by ensuring that they will not be adversely affected by alien employment in the U.S.
EB-2 visas are issued to workers with advanced degrees or exceptional abilities, including workers with advanced degrees and aliens with exceptional abilities that will benefit a designated aspect of the U.S. economy or interests. EB-3 visas are issued to professionals with bachelor's degrees, aliens with at least two years' experience as skilled workers, and unskilled workers in areas for which there are no qualified workers in the U.S.
Workers in the other employment-based categories, including priority workers, specialty workers, and workers engaging in a new enterprise, need not obtain labor certification as a prerequisite to the issuance of their visas. Workers who claim they need not obtain certifications have the burden of showing that they are entitled to exemptions.
The required certification indicates both that there is a shortage of workers in the U.S. to perform the work the alien will do and that the alien's employment in that line of work will not affect U.S. workers negatively, either through their wages or their working conditions. The Secretary of Labor has issued two schedules, known as Schedule A and Schedule B, to aid in the certification process. Schedule A grants certain occupations blanket certification, rendering individual certification applications unnecessary for prospective alien workers in those areas. Schedule B lists a number of occupations for which certifications will not be issued to any alien. For these occupations, a determination has already been made that the U.S. labor market would be adversely affected by alien employment. Schedule B is only a concern for applications filed before March 28, 2005.
Prior to March 28, 2005, there were two steps to obtaining a labor certification: Filing of an application with a state employment service agency, which processed the application, and; forwarding of the application to a regional Employment and Training Administration office. Denials of applications were appealable to the Board of Alien Labor Certification Appeals. After March 28, 2005, state employment service agencies had no authority to grant to deny a labor certification; rather, their role is simply to determine the prevailing wage and to process job bank postings. Further, as of march 28, 2005, all applications pending before state employment service agencies were transferred to "Backlog Processing Centers." Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |