Professional workers (those with baccalaureate degrees) or skilled workers (those capable of doing work that requires at least two years experience or training), in positions that need qualified workers who are not available in the U.S.; other workers (unskilled labor), that is not temporary or seasonal, in positions that need qualified workers who are not available in the U.S.
In the employment-based preference categories, employers must get labor certification from the U.S. Department of Labor. The job must be offered at or above the normal pay. The employer must find out what “normal pay” is from the State Workforce Agency (SWA). To obtain this certification, the employer must first try to hire U.S. workers. The employer must be able to show that there are no qualified U.S. workers who want to take the job. Such certification only counts if, when the application was filed, the employer says they are of filing for certification to:
- the bargaining representative (union) of the workers in the job category and area where the company is seeking to hire people who aren’t U.S. citizens,
- if a union does not exist, to the people already working at the employer by putting up announcements in obvious locations.
Anybody has the right to turn in evidence and documents to the Department of Labor that have to do with or that challenge the statements the employer made in the application for labor certification on file with the Department of Labor. This evidence can be information on available workers, wages and working conditions, and any information on the employer's failure to follow the rules about employing workers who aren’t U.S. citizens.