Q: Is the Labor Certification part of the H-1B? What type of a Visa is that?
A: It’s to help the person get a Green Card. So, there are subcategories for the Green Card, but ultimately it is to get an Immigrant Visa, whereas the H-1B is a non-immigrant visa.
These are terms that are often used interchangeably.
Under the H-1B Visa process there is an application called the Labor Condition Application, and that is something that basically guides the company to know when and where they can hire the individual and what their salary requirements are for the 3-year H-1B period. Whereas the PERM Labor Certification process is designed to allow the employer to sponsor the person for a permanent visa or immigrant visa, so that they can basically employ the person with no restriction.
And, that’s a very valuable tool because something we haven’t mentioned so far is when you’re hired in a nonimmigrant classification, as a general rule, you are restricted to that employer, you are restricted to the position you are sponsored under, etc.
Whereas, in the green card scenario, you are sponsored by a specific company for a specific position, but after a reasonable amount of time, you are not required to remain in that position. The employer can promote you, you can move around to different parts of the U.S. or even different parts of the world, in some circumstances without any of the restrictions that you would have under a nonimmigrant visa category.
But the Labor Certification process is a much longer process than for the H-1B because you are undertaking essentially 3 stages:
The employer is proving that there is no one able, willing or qualified to do the job by advertising the position and then filing the application with the Department of Labor.
If that is certified, then the employer is for the first time going to USCIS to file an I-140 petition, (this is the green card petition).
If that finishes, then, depending on where the person falls under the Visa Bulletin, which is the monthly quota system, then they can go and apply for the actual green card, whether it’s through the process called “Adjustment of Status” in the United States, or Immigrant Visa process in their home country, or wherever they are residing at the time.
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