THE PERM PROCESS

You may be eligible for EB-2 (employment-based, second preference) green card if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.  To qualify under the advanced degree designation, the job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

You may be eligible for an EB-3 (employment-based, second preference) green card if you are a skilled worker, professional, or other worker.

  • “Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature
  • “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions
  • The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

Both the EB-2 and EB-3 green cards require an applicant to undergo the PERM process or Labor Certification, which is a testing of the U.S. job market.  The purpose of the PERM process is for an employer to prove that a U.S. worker is unavailable for the offered position.

There are Three Steps to the PERM Green Card Process:

 

1. Testing of the U.S. Job Market

Effective March 28, 2005, the U.S. Department of Labor (“DOL”) implemented a procedure for applying for permanent labor certification – the Program Electronic Review Management process (“PERM” process).  A permanent labor certification issued by the DOL allows an employer to hire a foreign worker to work permanently in the United States.  This is a prerequisite of many employment-based green card petitions.

The PERM process requires the petitioning employer to conduct a series of recruitment activities to test the current U.S. job market before filing the application. If no qualified and willing U.S. worker (U.S. citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM Labor Certification to the DOL.

For professional positions, an employer must run a recruitment campaign within 30-180 days before the filing of the PERM application.  The employer is required to place:

  • two print ads in a Sunday newspaper of general circulation;
  • one ad in professional journal;
  • one ad on employer’s internet site;
  • one ad on job search web sites;
  • one ad on state job bank for 30 days;

Advertisements cannot be tailored to an applicant’s background and must contain the general minimum requirements for the position.  Applicants must be carefully screened and contacted if they meet the minimum requirements.  A detailed recruitment report must be kept on file.

The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the Department’s regulations require that the wages offered to a foreign worker must be the “prevailing wage” rate for the occupational classification in the area of employment.  To confirm this figure, the employer is required submit a request to the DOL for a Prevailing Wage Determination (“PWD”).  Current processing times for the PWD range from 2-3 months.

Timeframe and costs for this step:

  • Processing times: 3-6 months for the PWD/recruitment campaign + 9 months for DOL processing = 12–15 months (roughly).
  • There is no charge for the filing of the PERM with the DOL.
  • Costs for required advertising will vary according to the specific advertising source and location. An employer is required to pay these costs.

2. Filing a Preference Petition with USCIS

Once the PERM application is certified by the DOL, a preference petition can be filed with U.S. Citizenship and Immigration Services (“USCIS”).  This petition requires proof of PERM certification, information about the employer (including the ability to pay the proffered wage), evidence that the applicant holds a qualifying advanced or professional degree, evidence that the applicant has gained specific skills required of the position, etc.  The petition is filed with USCIS based on the location of the employer.

Premium Processing service is available for certain (not all) immigrant preference petitions.  Under the Premium Processing Service, USCIS guarantees petitioners that a government response will be issued within 15 calendar days of receipt.

Timeframe and costs for this step:

  • Regular Processing: response on the petition in 12-18 months depending on government processing times (varies) and location of service center. USCIS filing fee of $700.00 is required.
  • Premium Processing (optional): response on the petition in 15 calendar days. USCIS filing fees of $700.00 plus $1,225.00 are required.

3. Immigrant Visa Processing or Adjustment of Status

The final step of the green card process is asking the government to create the physical green card for the applicant based on the I-140 approval.  There are two ways to do this.  Adjustment of Status is a procedure that allows an applicant to become a lawful permanent resident without having to attend an immigrant visa interview outside the U.S.  By contrast, with Immigrant Visa (Consular) Processing, the immigrant visa interview takes place at an Embassy or Consulate outside the U.S. that has jurisdiction over the beneficiary.  Both methods of filing have advantages and disadvantages, and a decision should be made based on the applicant’s location at the time of filing, status in the U.S., future travel and work plans, and the applicant’s preference for processing.

However, before either process can begin, it must be determined if a “visa number” is available.  The U.S. has placed legal limits on the number of foreign nationals that may immigrate permanently each year. These limits apply to employment based (EB), family based (FB) and diversity lottery categories (DV). The information needed to determine the availability of a visa number for a particular type of case can be found in the charts published in the Department of State’s Visa Bulletin each month.  Berardi Immigration Law will assist in this complex analysis and confirm the filing strategy.

  • Adjustment of Status

If the applicant has made a lawful entry into the U.S. and is currently residing in the U.S., he or she may be able to apply for Adjustment of Status (AOS).  It is also usually required that applicants for AOS maintain lawful status in the U.S.

In this scenario, the paperwork relating to the foreign national’s eligibility for AOS is usually filed with USCIS at the same time the I-140 petition is submitted. Additionally, to establish employment eligibility and to preserve international travel privileges, other forms are also submitted with the application. Processing times for the AOS can vary from 2-6 months (subject to change) following the I-140 approval.  The government filing fee for Adjustment of Status is $1,225.00 USD per applicant.

It is important to note that once an application for AOS has been filed, the applicant may not be able to depart the U.S. until travel authorization, also known as Advance Parole, is issued. In most cases, this document is usually issued within 60-90 days after the application has been submitted.  Employment Authorization will also be issued at this time, allowing the foreign national to work in the U.S. while the application is pending.  In certain situations, however, if the applicant is an H or L nonimmigrant maintaining valid status, he or she may be able to depart the U.S. without facing adverse consequences. Should an applicant depart the U.S. while the application is pending but before Advance Parole is issued, USCIS may consider the applicant to have abandoned his or her application to adjust status.

  • Immigrant Visa (Consular) Processing

If the applicant primarily resides abroad and meets certain statutory requirements, he or she may pursue Immigrant Visa Processing (IVP), also known as Consular Processing.  Once the I-140 petition has been approved by the service center, USCIS will then send the case to the National Visa Center (NVC). The applicant will then be required to submit an additional application and documents for the NVC’s review. These items include biographic documentation of the applicant, including his/her birth certificate, police clearances, etc. Once all of the requirements are met, the NVC will then forward the application to the U.S. Embassy or Consulate having jurisdiction over the applicant’s place of birth. The Embassy/Consulate will then schedule the foreign national for their interview date along with instructions for undergoing a required medical examination. After the interview, the foreign national will receive an immigrant visa in his/her passport and can then enter the United States as a lawful permanent resident.  The physical green card will follow by mail.

Immigrant Visa processing times range usually from 3-6 months  after I-140 approval, depending on Embassy or Consulate caseload. Please note that processing times are subject to change.

Once the green card is issued, the individual is now considered a “lawful permanent resident” and is allowed to reside and work in the U.S. on a permanent basis. Although this status is permanent, the actual card (Form I-551) expires every ten (10) years and must be renewed much like a driver’s license by submitting a form and photos to USCIS.

Legal Services

Our office will confirm the legal fee for this three-step process.   Our services include:

  • Assistance in identifying the actual minimum requirements for the position(s);
  • Submitting a request for the prevailing wage;
  • Drafting and ordering the required advertisements;
  • Providing guidance on the good faith recruitment and evaluation of applicants;
  • Assisting with the preparation of the required recruitment report;
  • Completing the PERM on-line application;
  • Drafting and submitting the I-140 petition and supporting documentation; and
  • Drafting the Adjustment of Status or Visa Processing documentation.