Obtaining an employment-based green card can be an extremely complicated and multifaceted process and prospective applicants are strongly encouraged to consult with an attorney before proceeding.
One common prerequisite to applying for an employment-based green card is obtaining a labor certification. This process is required for the Second Preference EB-2 category and the Third Preference EB-3 categories. The labor certification process is commonly referred to as “PERM” and is itself a multi-step process within the overarching employment-based green card application. PERM stands for Program Electronic Review Management and is necessary for a majority of all employment-based green card applications.
The purpose of this process is to ensure that U.S. workers and the U.S. labor market are protected. It aims to ensure that foreign workers applying for immigrant visas are not displacing equally qualified U.S. workers from job opportunities.
Employers are responsible for completing and paying for the PERM process, including attorney fees. While the PERM process can be costly, it is not a recurrent expense.
In some cases, the PERM requirement can be waived for the EB-2 category if the applicant files a National Interest Waiver (NIW), although this option is less common.
EB-2 and EB-3 Categories
EB-2 and EB-3 categories are employment-based options to obtain a green card. Both of these options require labor certification.
Foreign nationals may be eligible for an EB-2 green card if they are a member of the professions holding an advanced degree or its foreign equivalent. This subset may instead require a foreign national to have at least a bachelor’s degree and five years of experience in the field. Additionally, foreign nationals with exceptional ability are eligible for this category. Exceptional ability is defined as “a degree of expertise above that ordinarily encountered in the sciences, arts, or businesses.” Lastly, the EB-2 category includes foreign nationals seeking a National Interest Waiver (NIW). This route allows foreign nationals to self-petition, and the PERM recruitment process would not occur.
The eligibility requirements to apply for an EB-3 green card are slightly different than for an EB-2. Skilled workers, professionals, and unskilled workers all fall into this category. Skilled workers must be able to show at least two years of job experience or training. Professionals are required to possess a baccalaureate degree or the foreign equivalent and show that the degree is what is normally required to enter the specific occupation. Education and experience cannot be used to substitute for a baccalaureate degree in the “professional” category. The eligibility requirements for unskilled workers is more fluid than other subcategories; foreign nationals must be able to perform unskilled labor, requiring less than two years of training, that is not seasonal or temporary. In order for any of these petitions to succeed, USCIS must be satisfied that there is no qualified worker for this work in the U.S.
EB-2 and EB-3 green card categories provide a path to citizenship. After a five-year period, employment-based green card holders can apply for citizenship, if they choose.
Step 1: Formalize the Job Description
To begin the labor certification process, employers must determine the description of duties for the potential employee, as well as determine any minimum requirements or skills that will be necessary for the proposed employment. The job description must be conveyed to the U.S. Department of Labor (DOL). Determining and drafting a successful job description is extremely nuanced and one of the hardest aspects of applying for an employment green card. This step is extremely important for the process.
Step 2: Prevailing Wage Request
Next, the petitioning employer must make a prevailing wage request to DOL. The prevailing wage is considered the wage, usual benefits and overtime, paid to the majority of employees within a certain area and industry. Employers are required to pay foreign workers at least the prevailing wage, if not more. There is also variation in a prevailing wage depending on the geographic region in which the employee will work. The purpose of this request is to ensure that the employee will be paid a fair wage and not a low wage that could undercut the U.S. workforce.
The request submitted by the employer provides the government with information about the job offer. This generally includes job requirements, job duties, and the worksite location. Additionally, DOL takes into account experience and education. The government uses this information to issue the employer with a prevailing wage determination (PWD). Generally, DOL uses the Online Wage Library to determine the appropriate prevailing wage, which can vary significantly within professions based on individualized factors. This part of the process generally takes three to four months. Once issued, the PWD will be valid for a six-month period. In the months that follow, an employer is required to submit the recruitment file and PERM Labor Certification while the PWD is valid; the sooner, the better.
Step 3: Placing Advertisements and Recruiting
In order to successfully complete PERM, an employer must demonstrate that there are no willing and qualified U.S. workers who applied for the specific job opportunity. An employer must conduct a good faith effort to recruit qualified workers. This means that the advertising and recruiting efforts cannot be so narrowly tailored to only fit the intended foreign national beneficiary.
Employers must complete the mandated recruitment requirements before the PERM process can be completed. Notice to current employees must be provided via in-house media. In-house posting must note the salary range. Additionally, the employer must provide the state workforce agency with the job order for thirty days. Employers must also take out two Sunday advertisements in the newspaper of general circulation in the area of employment. They must post one as on a job search website and another in a professional journal.
Even after an employer completes the mandatory recruitment steps, there are still additional steps an employer must take. An employer is required to complete three additional steps to give notice of the employment. Some options that are available are utilizing radio and television advertisements, private employment firms, and on-campus recruiting. The recruitment step in the PERM process generally takes around two months to complete.
Step 4: ETA Form 9089
The Application for a Foreign Labor Certification (ETA Form 9089) is a form issued by DOL to be submitted by an employer. This document must be completed and submitted to DOL if an employer successfully passes the first steps of the PERM process. If successful, ETA Form 9089 will be approved and DOL will then issue a permanent labor certification which allows the employer to then submit the prospective employee’s immigrant petition (Form I-140).
Once the government accepts the ETA Form 9089 application, the foreign national is assigned a priority date. This last step of the labor certification process takes around four to six months for government approval. Government processing times are subject to change.
Post PERM Process
Once the PERM process is completed, the applicant can move forward with their immigrant petition. It is possible to expedite this part of the process, though not necessary. Once the immigrant petition has been approved, the applicant may be eligible to request the physical issuance of the green card. There are two options regarding the green card issuance application: adjustment of status or consular processing. Adjustment of status occurs when the beneficiary is legally present in the U.S. while the application is being processed. Consular processing generally occurs when the beneficiary is not present in the U.S. There are pros and cons for either option, and choosing an option is highly dependent on each individual situation.
Tips for Drafting PERM Application
While the PERM process itself is complicated, it is only one part of the employment-based green card application. Not only must the PERM Labor Certification be approved by the U.S. Department of Labor (DOL), but the subsequent Form I-140 immigrant petition must be approved by U.S. Citizenship and Immigration Services (USCIS). For that reason, it is crucial to have a plan and foresight when drafting these documents to ensure they correspond. The fact that DOL approved labor certification does not mean that the foreign national is automatically approved for a green card. The foreign national must meet the approved labor certification criteria and be approved by USCIS.
As a rule, the earlier a PERM application can begin, the better. Starting earlier can reduce a significant amount of stress if there are any unexpected delays or bumps in the road. This may confer additional benefits for both employees and employers. For example, once employers successfully complete the PERM and I-140 processES, they may obtain extensions for their H-1B employees beyond the regular time limit until these employees are able to apply for permanent residency.
One of the most important tips to drafting a successful PERM application is to demonstrate that the foreign national meets every requirement listed on the labor certification. In order to show this, extensive documentation should be collected as early as possible. This includes credentials, training, educational and experiential documentation. Educational requirements often merit special attention, as USCIS does not always calculate foreign degrees as equivalent to their U.S. counterpart degrees. If special care is not taken early on, it could result in a PERM approval but immigrant petition denial with USCIS.
Not only must prospective foreign national employee information correspond throughout all steps of this process, employer information must not be overlooked either. There are additional complications that may arise, specifically in the context of an employer. For example, an office may move or a workplace could change. These are issues that must be resolved in the application process; otherwise, they could lead to potentially negative consequences.
In all aspects of an employment-based green card be sure to maintain accurate and complete records. Completing an application for an employment-based green card is a process that requires expertise. If you have questions about this process, please contact Berardi Immigration Law today to speak with an attorney!
The government has placed statutory limits on how many people can immigrate to the United States each year, so once you submit your application, you may have to wait until there is a visa available in the category you applied for. Each month, the Department of State (DOS) issues a visa bulletin, which indicates when visas are available based on your priority date and country of birth. Your priority date is the date that your petition was approved by USCIS. If a labor certification was required with your petition, the priority date is the date when the certification was accepted for processing by the Department of Labor.
What chart do I use?
The visa bulletin contains two charts for each visa category with different dates: final action dates, and dates for filing applications. If filing via Adjustment of Status, USCIS will determine which chart controls in a given month. If filing via Immigrant Processing, the National Visa Center will reach out once you can begin these steps. In general, the green card cannot be issued until the final action date is current. Visit the USCIS website here to determine what chart you should use.
What do I do when my priority date becomes current?
In order to take action, your priority date must be earlier than the date listed in the visa bulletin. If you are applying for adjustment of status, once your priority date becomes current, you may file the I-485 form, Application to Register Permanent Residence or Adjust Status. If you are applying through Immigrant Visa Processing (IVP), the National Visa Center will contact you when your case becomes current, or is likely to become current soon, to initiate pre-processing. Once the pre-processing is complete, NVC will forward your information to the Embassy or consulate who will contact you once an interview is scheduled.
How does the (potential) wait time effect the PERM process?
When applying for PERM certification, employers should consult the Visa Bulletins to get a realistic timeframe as to when a potential employee would be able to secure a green card and travel to the United States. Generally, as long as the job description remains the same, the PERM certification will remain valid while the potential employee waits for their priority date to become current. There are some instances where a new PERM would be required, including (but not limited to): relocation of the job, significant change to the employee’s job description, or the elimination of a duty that required specific qualifications be met by the candidate.