Labor Certification案例分析

Labor Certification案例分析 By: Beth Robertie, Esq. 針對以RIR方式的勞工卡申請案件所遇到的一些問題，以下我們會對一個Labor Certification案件作出分析，以供大家參考： The alien beneficiary (AB) holds a Bachelor’s degree in Engineering from a foreign university and has eight years of foreign engineering experience. He also holds two master’s degrees – one in Business and one in Engineering. After acquiring both master’s degrees, AB becomes a Professional Engineer and begins work at a small engineering firm in Colorado in 2000. Three years after AB begins work at the firm, AB’s firm files for an Alien Labor Certification under the Reduction in Recruitment (RIR) procedure so that AB might acquire an employer-sponsored green card. AB’s RIR Application has the following problems: · The job requires four years of experience as a Professional Engineer. AB did not have any experience as a Professional Engineer when he began the job. Pursuant to the Department of Labor’s regulations, all experience must be satisfied at the time of the Labor Certification filing, and experience gained from the same employer cannot be counted. · The job requires both an MBA and a Masters in Engineering degree, which will likely be seen by the Department of Labor as unfair to the labor market as the requirements are overly tailored to fit the specific applicant. Unless the employer can justify this requirement with a Business Necessity Letter, this requirement will likely cause this application to fail. · Not all of the RIR recruiting requirements had been satisfied at the time of the filing of the Labor Certification. AB has the following options: 1. Start a PERM application with the same employer. This is probably AB’s best option, as the employer has already shown a willingness to go through the Labor Certification procedure. Although AB will lose his 2002 priority date, since the initial application has some fatal flaws which will almost surely cause the application to fail, it is best to start with a clean slate. By requiring a single masters degree with no experience, his firm will ensure that his application falls into the EB-2 category, which has a much shorter backlog than the EB-3 category. This time AB will save himself and his firm a lot of aggravation by ensuring that all of the PERM regulations are followed very closely so that there will be less chance for denial of his new application. 2. File PERM application with no changes to preserve the RIR priority date. Although preserving the priority date is an advantage, this might be a poor option because, as noted earlier, the initial RIR application had some flaws that will most likely cause it to be denied. Filing an identical PERM application will not repair any of the problems with the initial application. However, AB could preserve his RIR priority date by filing an identical PERM application (which will get approved faster) and there is some chance that it could get approved despite the flaws. Another factor that makes this path risky is the fact that the Department of Labor determines whether the applicant is eligible to retain his priority date. The only way to find out, however, is to file the PERM application requesting the RIR priority date, which, in effect, withdraws the RIR application. 3. Wait until the RIR application is denied and then attempt to fix it. This is a very poor option, as once the RIR application is denied, there are few avenues for appeal. Furthermore, since the application has so many problems, the chances of successfully arguing for an appeal are very slim. 4. Change employers and file a PERM application. This option offers most of the same advantages as option #1, but AB now has to find another employer who would be willing to go through the Labor Certification process, and he will still lose his 2003 priority date. Furthermore, even if AB can utilize the experience gained at his current job, he will remain in the EB-2 category unless he has some kind of extraordinary ability that qualifies him for the EB-1 category. ______________________________________________________________________________ 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 www.Fan-Law.com CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]