A foreign national can obtain permanent residence status
(green card) in the United States pursuant to the Department of
Labor approving an Application for Permanent Employment Certification (commonly
referred to as Labor Certification as well as PERM) and the USCIS subsequently
approving the related Immigrant Petition for Alien Worker filed by the employer
on behalf of the foreign national. Typically an employer sponsors such
individuals based on the offer of a permanent full-time employment. A few
highly qualified individuals may be exempt
from PERM and even a job offer.
As per the Department of Labor (DOL) regulations, only one
PERM application can be filed at a
time by an employer on behalf of a foreign national for a given position.
However, this does not preclude multiple employers filing separate applications
for the same individual, provided there is a valid job offer. The labor certification
process can be completed for persons either inside or outside the U.S. Also note that the person being
sponsored for the labor certification does not have to be currently employed by
the sponsoring employer.
On approval of the above specified Application for
Permanent Employment Certification and Immigrant Petition for Alien Worker, the
foreign national can either apply to adjust status to that of a permanent
resident if present in the US or apply for an Immigrant Visa at the US
consulate in the foreign national's home country.
Obtaining permanent resident status (green card) is a
multi-step process involving applications and petitions filed with the US
Department of Labor and the US Citizenship and Immigration Services.
Labor Certification Process
The first step is to obtain certification from the US
Department of Labor. A labor certification is a document issued by the United
States Department of Labor certifying that the employer has been unsuccessful
in recruiting local U.S. workers for the full-time position being offered to
the foreign applicant. According to the DOL regulations, the employer is
required to complete certain recruitment steps prior to filing the application.
They are described in detail and listed below.
Some of the most common forms of advertisements which
include the mandatory advertisements as required by DOL regulations are as
follows: Newspaper advertisements (2 Sunday editions); Newspaper website; Job
Order with the State Department of Labor; Advertise the position on the
employer’s website; Advertise the position using employee referral program and
Posting Job Opportunity Notice of Filing in the company premises
Once the recruitments steps are completed the employer
will have to wait for a minimum of 30 days before filing the application with
the DOL. All recruitment steps must be completed in order to file the
application for permanent employment certification and should have taken place
within 180 days months prior to the date of filing the application. One set of
recruitment may be able to support the filing of PERM applications for multiple
employees if the offered job and salary, etc. is common to the sponsored
employees.
Prevailing Wage
The prevailing wage is determined by the State Workforce Agency (SESA) prior to
filing the application for permanent employment certification. Our office will
contact the appropriate State Workforce Agency and obtain the prevailing
wage.
Mandatory Advertisements
� The position must be advertised in two Sunday editions of
the most widely circulated publication in the area of proposed employment.
� The position must be listed for a period of at least 30
days with the appropriate state-level Department of Labor.
� The position will also have to be advertised within the
Employer's premises by posting a Job Opportunity Notice of Filing for a period
of at least 10 business days (14 calendar days).
Additional recruitment steps
In addition to the above the PERM regulation requires 3 additional recruitment
steps for professional jobs (a job for which a bachelor's or a higher degree is
a usual educational requirement).
The list of permitted additional recruitment steps include; (a) job
fairs, (b) employer's web site, (c) job search web sites (note that a newspaper
with an online help wanted section counts for a website other than the
employer's, and it is possible to coordinate the online advertising with the
print advertising of the same newspaper in which the print advertisement
appeared), (d) on campus recruiting, (e) private employment firms, (f)
professional and trade organizations, (g) employee referral programs, (h) job
notice at a campus placement office if the job requires a degree but no
experience, (i) radio and television advertisements, (j) local and ethnic
newspapers (but only to the extent they are appropriate for the job
opportunity).
If there are any applicants pursuant to the above advertisements the employer
shall arrange to interview them within a reasonable time (2 weeks) and also
maintain records of such interviews.
On completion of the above recruitment steps the application will be filed
electronically with the Department of Labor. According to the DOL the
applications will be adjudicated within 60 days of receipt of application.
However, the time taken can vary considerably.
In order to file the application online, which is the recommended method, the
employer must register with the DOL at the Permanent Labor Certification
website and also create a user account for the attorney.
As per PERM guidelines, the employer will be required to maintain for a period
of five years all records of recruitment such as recruitment report, advertisement
copies, internal job postings, web postings, etc. including resumes received
from US workers, and it must provide the same if requested by the Certifying
Officer in the event of an audit. The DOL will audit applications based on
criteria developed to identify problem applications. Furthermore, in order to
maintain quality control, the DOL will also audit random applications. No more
than 10-15% of all applications are expected to be audited.
With regard to the pre-filing recruitment process our
office will apply to the appropriate State Workforce Agency and obtain the
prevailing wage, draft the advertisement text and publish it in the appropriate
newspaper. We will assist the employer in carrying out the other recruitment
steps by providing detailed instructions and guidance every step of the way,
and advising on related issues such as whether phone interview is OK, etc.
Immigrant Petition for Alien Worker
On approval of the PERM application, the employer will file the Immigrant
Petition for Alien Worker (Form I-140) with the USCIS. At the time of filing
the I-140 petition, the employer must establish that it is capable of paying
the stated wage. Evidence of ability to pay shall be in the form of copies of
annual reports, federal tax returns, or audited financial statements. In many
cases a net loss by the employer can be offset by assets exceeding liabilities.
Application to Adjust Status
Upon the filing or approval of the Form I-140 by the USCIS, the foreign
national, if already in the United States, may be able to file an
Adjustment of Status Application (Form I-485) in order to obtain lawful
permanent resident status provided his or her priority
date is current. In the alternative, upon approval of the Form I-140, the
foreign national may apply for an immigrant visa at a U.S. Consulate abroad and
gain lawful permanent resident status upon admission to the United States with
an immigrant visa, provided his or her priority date is current.
Please contact our law firm for
a free no-obligation legal consultation if you already have a job offer and the
employer is considering supporting you for a green card through PERM, or if you
are an employer considering the possibility of supporting a current or future
employee in the filing of a PERM application.