Obtaining permanent resident status (green card) is a multi-step process involving applications and petitions filed with the US Department of Labor and the U.S. Citizenship and Immigration Services.
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 Immigrant Petition for Alien Worker (Form I-140) filed by the employer on behalf of the foreign national, as well as successful filing of the last step, Adjustment of Status. Typically an employer sponsors such individuals based on the offer of 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 is not required to be currently employed by the sponsoring employer; the job offer is for "future" employment.
The filing of a PERM application by itself does not authorized current employment, however. Employment in the interim must be authorized, which in most cases is on the basis of valid nonimmigrant employment-based visa status such as H-1B or L-1. On approval of the PERM application by the DOL, and I-140 Immigrant Petition by the USCIS, the foreign national can either apply to adjust status to that of a permanent resident if present in the U.S., or apply for an Immigrant Visa at a U.S. Consulate in the foreign national's home country.
The first step is to obtain certification from the U.S. Department of Labor. A labor certification is a document issued by the DOL 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, including 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 at the company premises.
Once the recruitments steps are completed the employer will have to wait for a minimum of 30 days before filing the PERM application with the DOL. All recruitment steps must be completed and should have taken place within 180 days 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.
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.
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.
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 U.S. 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.
With regard to the pre-filing recruitment process our law firm 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.
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, although a company with 100 employees or more has the option of submitting a statement from a financial officer of the company affirming the company's ability to pay the offered salary. In many cases a net loss by the employer can be offset by assets exceeding liabilities.
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, again provided his or her priority date is current.
Although the DOL regulations regarding PERM may seem intimidating at first glance, professional guidance and support from an experienced immigration attorney maximizes the probability of successful filing. Please contact our law firm 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.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]