The labor certification (PERM) process is one of the ways to obtain permanent resident status for persons who are seeking such status based upon a current or future job offer in the United States. The employer must obtain an approved labor certification from the U.S. Department of Labor. Specifically, the Department of Labor must certify that qualified U.S. workers are unavailable to fill the position which is the subject of the job offer, and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Filing the correct forms that apply to your unique situation, and ensuring that you meet the criteria for filing your application, can best be handled by an experienced Immigration Attorney like Susan B. Henner.
Ms. Henner is a New York Immigration Attorney experienced in all aspects of Immigration Law, from business and family-related immigration matters, to the green card process and complex deportation cases. In her 17 years of experience as a lawyer in New York, she has handled countless cases involving work permits, temporary nonimmigrant visas, citizenship, and green cards for thousands of people including Fortune 500 companies, start-up businesses, and individual employers alike.
Prior to filing any paperwork with the Department of Labor or the Immigration Service, the employer must first undertake recruitment for the position he is offering to the alien. This process involves placing advertisements in a newspaper on 2 Sundays and 3 other methods of recruitment if the position is for a professional. Under the new and faster PERM green card process, there are specific advertising requirements which must be complied with in order to file the green card (labor certification) application with the Department of Labor. Recruitment must consist of the following:
Once the recruitment period for the position is completed, if the employer can document that no US workers are available, are qualified, or are willing to take the job, a formal application is initiated by filing a PERM Application (Form ETA-9089) on the Internet.
The Department of Labor will advise the employer as to the minimum salary an employer may offer for this position, which is based upon what education, experience, and duties are required to perform the position.
After the PERM application for labor certification has been approved, the Department of Labor will issue a certified copy of the form filed on the Internet.
The next step is the filing of an Immigrant Visa Petition for Alien Worker (Form I-140), which is submitted with the approved labor certification to the USCIS on behalf of the alien and any applicable family members. The petition must be supported by documentation that shows the alien meets the requirements for the position itself as set forth in the labor certification application. The employer must also prove that they can pay the beneficiary the offered salary.
When filing the PERM, every case is assigned a priority date, based upon the date the petition is first filed. It is at this time that the case ‘gets in line’ for a visa number. The USCIS only issues a specific amount of visas and green cards each year. Therefore, if too many people apply in one category in any one year, there may be a backlog of numbers and the alien’s case may be placed in a ‘waiting’ or ‘hold pattern’ in order to complete the process. Current processing dates are listed by the State Department each month in its monthly Visa Bulletin. NOTE: If the alien’s priority date is current at the time we are ready to file the I-140, the alien may file the adjustment of status application at the same time as the I-140, eliminating a step in the process.
Once the I-140 is approved, we look to the Visa Bulletin to see if the case’s priority date is current. If it is current right away, the alien may then proceed to file the Application for Adjustment of Status (Form I-485) for him/herself and any eligible family members. If the alien’s priority date is NOT current, the alien will have to wait until said date is current in order to complete the green card process. At this time, there are backlogs in the EB-3 category of cases, meaning that most cases may be backlogged for many years. Most persons with a Bachelor’s Degree or less will have a wait at this point for many years. The cases with current priority date consist of those persons employed in jobs requiring Master’s Degree or higher (EB-2) or persons having extraordinary ability in their field (EB-1). It is important to note that while the alien is waiting for their priority date to become current, they are not conferred with legal status or a work permit. They must still maintain their nonimmigrant visa or other status if they wish to remain legal in this country while waiting.
With the filing of an adjustment application, an Application for Employment Authorization may also be filed, as well as an Application for Advance Parole, which is a travel document, permitting the alien to travel while his or her application is pending. Both documents are usually issued within 90 days of filing these applications. Once the employment card is issued, the alien will be legally permitted to work for your company without possessing a different type of visa. NOTE THAT ONCE THE ADJUSTMENT PETITION IS FILED, the alien will need a special travel permit in order to leave the US unless he or she has either a valid H or an L type visa in their passport.
PLEASE NOTE: the Adjustment of Status stage of the process only applies to those who are either legally in the United States or who have filed a previous petition of specific types with the INS/Department of Labor prior to April 30, 2001. Those who are illegal in the United States, or who have never filed a petition prior to the deadline, may be required to return to their home country for their interview relating to permanent residence. However, these persons may be subject to a 3 or 10 year bar upon seeking re-entry to the United States, depending on the amount of time spent in the United States illegally, and would need a waiver to return before that time period.
As an extremely knowledgeable Immigration Attorney who has assisted thousands of immigrants in obtaining permanent residency status, nonimmigrant visas or work permits, and citizenship, Ms. Henner will be able to guide you through the complex process and procedures involved in obtaining your Green Card. Contact her today at 1-888-733-0141 or (914) 358-5200, by email at Susan@sbhenner.com, or use the contact form HERE on her website.