ALTERNATIVES TO
LABOR CERTIFICATION
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Most of the foreign-born students who are sponsored by their
employers for permanent residence in the U.S. must undergo the
labor certification process. However, the law provides that a
select minority of applicants for permanent residence may bypass
DOL, and may commence their application by directly petitioning the
INS.
Although a wide variety of occupations, from million-dollar
investors to religious workers, are exempt from labor
certification, only those categories most used by recent college
graduates are discussed below.
Shortage occupations
Labor Department regulations designate certain occupations which
are determined to be chronically short of workers and exempts
employers of such workers from the labor certification process.
Presently, the regulations list only two occupations: registered
nurses and physical therapists.
Priority Workers
The Immigration Act of 1990 rewrote much of the employment-based
immigration provisions contained in prior law. It created a new
classification scheme for employment-based immigrants and exempted
many of them from the labor certification process. The largest
category of persons exempted from labor certification are called
priority workers.
Priority workers consist of the following three subcategories: (1)
aliens of extraordinary ability, (2) outstanding professors and
researchers, and (3) certain multinational executives and managers.
By definition, an extraordinary ability worker is one who belongs
to that "small percentage" that have "risen to the very top of the
field of endeavor." Should you qualify for this category, the law
does not require that you be sponsored by a particular employer.
However, the documentation requirements for inclusion in this
category are demanding. Your extraordinary ability must be in one
of the following fields: the arts, sciences, athletics, business or
education.
The second subcategory, outstanding professors and researchers,
requires that you be internationally recognized as outstanding in
your specific academic area and that you meet certain other
requirements (such as three years teaching or researching
experience in the field and a tenure or tenure-track position).
The third subcategory, for multinational executives and managers,
is little used by foreign students since it requires you to be
employed abroad as an executive or manager for at least one of the
past three years.
National Interest Waivers
Another exception to the labor certification requires that you
possess either an advanced degree or are of exceptional ability in
the arts, sciences or business, and that your immigration to the
U.S. would be in the national interest. The INS has set forth the
following seven factors which may be considered in defining
national interest: Would your employment (1) improve the U.S.
economy, (2) improve the wages and working conditions of U.S.
workers, (3) improve education and training programs for U.S.
children and under-qualified workers, (4) improve health care, (5)
provide more affordable housing for young and/or older poorer U.S.
residents, (6) improve the environment and make more productive use
of natural resources, or (7) did you come to the U.S. at the
request of a U.S. Government agency?
However, in August 1998, INS issued a precedent decision
making it very difficult to receive a national interest waiver.
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