An application for alien employment certification or “labor certification” is the first step in the process of a potential employer sponsoring a Nanny for U.S. permanent residency. It constitutes a determination by the Department of Labor that there are no qualified “U.S. workers” willing to accept the job offered to the noncitizen at the average wage paid to do a similar job in that particular part of the United States.
Once a labor certification has been approved on one’s behalf, the employer may file a “petition for immigrant worker” (form I-140) upon the Nanny’s behalf with the United States Citizenship and Immigration Services (“USCIS”). Provided that a visa number “is available” for the Nanny, the nanny may also file an application for adjustment of status (form I-485) with USCIS if the nanny is already in the US in a valid nonimmigrant status and remains in the United States with employment authorization until a decision is made on the application. A Nanny receives a green card when both form I-140 and form I-485 are approved on her behalf.
A visa number becomes “available” when the “visa cut off date” (as announced each month in the Department of States visa bulletin) becomes later than one’s “priority date” (the date upon which a labor certification was filed upon the noncitizen’s behalf).
Labor Certification Procedure for Nannies
In order for a “labor certification” (form ETA 9089, “Application for Permanent Employment Certification”) to be issued to a Nanny, a potential “employer” must do five to seven things:
a) Offer the Nanny a “permanent” job effective no later than the date the Nanny becomes a permanent resident.
b) Request a prevailing wage determination from the local “state workforce agency” (“SWA”) for the job offered to the Nanny. The “prevailing wage” is, generally speaking, the average amount paid to do the offered job in the area in which the Nanny will work. The request for a prevailing wage determination must include a job title, a detailed job description, and a complete statement of the minimum education training and/or experience required to fill the position.
- Endeavor in good faith to recruit a U.S. worker to fill the job offered to the Nanny by placing a job order in the applicable state “job bank”, and advertising in two different Sundays in the newspaper of general circulation in the area where the noncitizen will work most likely to attract responses from U.S. workers. A notice must also be placed at the location where the Nanny will work unless it is a private household, which does not employ one or more U.S. workers at the time.
- Prepare a written statement explaining why any U.S. workers who applied for the job were rejected only for lawful job-related reasons. The job-related reasons for which applicants may be rejected are only those specified on the application for a prevailing wage determination filed with the SWA mentioned above.
e. File form ETA 9089 with the Department of Labor.
f. In a certain number of cases, the employer may be required to present evidence of his recruitment efforts to the Department of Labor official in charge of his case, called the “Certifying Officer”. If they are satisfactory, the application will be approved. If not, the application may be denied, or
g. The employer may be required, at the Certifying Officer’s discretion, to engage in “supervised recruitment” (see below).
I-140 Processing for Nannies
After the labor certification is filed with the DOL we will prepare the employer’s petition for immigrant workers (Form I-140).
There are usually three issues involved in an I-140.
1. Does the employee meet the requirements for the job set forth in the labor certification?
Before even commencing the above-required recruitment we require the Nanny to provide us with evidence documenting that the nanny had all the requirements for the job no later than the date he was hired by the current employer. This evidence will be submitted in support of the I-140.
2. What preference category will the employee be classified in?
Nannies normally will fall into the 3EW (other worker) preference category.
3. Does the employer have the ability to pay the offered wage?
One of the requirements for the approval of an I-140 is that the employer demonstrates that the employer not only can now but could have paid the employee the wage mentioned in Item 12 Part A of the application from the day the labor certification was filed right through the day the Nanny becomes a permanent resident. This can be shown by proving that for each year in which the labor certification was pending the employer had income, in excess of normal household expenses equal to or greater than the offered wage.
ADJUSTMENT OF STATUS – this only applies to aliens who are already in the US with a valid nonimmigrant status.
Visa Cut Off Date
Once the labor certification has been approved then it will be necessary to consult the “visa cutoff date” to determine whether an application for adjustment of status (Form I-485) may be filed by the Nanny.
If the Nanny’s category is subject to a “visa cutoff date”, the rule is that the Nanny may not file a Form I-485 until the visa cutoff date for her classification is later than her “priority date.” (the date form ETA 9089 was filed with the Department of Labor). Assume, for example, that the visa cutoff date for the Nanny’s classification is August 1, 2020. This means that only if her labor certification was filed on or before December 31, 2020, and the labor certification has been approved, could the Nanny file a Form I-485 with the United States Citizenship and Immigration Services (USCIS).
After filing Form I-485 the Nanny may remain in the United States until a decision has been made upon it. Further, she may apply for employment authorization in connection with this application, which should be granted and extended until she becomes a permanent resident.
International Travel While An I-485 is Pending
It is also important to note that leaving the United States while a Form I-485 is pending usually automatically abandons that application unless the Nanny is granted “advance parole” before leaving the United States. An application for advance parole may be made with a Form I-485 and is usually granted as a matter of course. Further, if the Nanny has an emergency need to travel internationally before her advance parole is granted, she may apply for “emergency advance parole” which can be granted on a highly expedited basis.
Contact Us to Apply for Permanent Residency for a Nanny
This memorandum cannot begin to address all or even most of the complex issues which can arise in the processing of an application for a green card based on employment as a Nanny. We have only been able to touch upon the major issues and discuss them in a general sense. Therefore, it must be emphasized that none of the statements contained in this memorandum constitute legal advice and that the statements contained in the memorandum could prove to be inaccurate and misleading as applied to your particular case. Therefore, as always, the best advice as to how to approach a particular situation is to discuss the matter with an experienced immigration attorney at the Immigration Law Office Of Los Angeles. You can contact us by filling out the form on the right side of this page or by calling 213-375-4084.