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.
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.
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.