Realizing Your American Dream with Berardi Immigration Law
A green card is more than just a document – it’s the key to unlocking your American dream. At Berardi Immigration Law, we understand that your aspirations for a life in the United States are as unique as your individual talents and experiences. Whether you’re a professional with an advanced degree, a skilled worker with exceptional abilities, or someone bringing valuable skills to the U.S. workforce, we’re here to guide you through the intricate process of obtaining your green card.
For those with advanced degrees or exceptional abilities, the EB-2 (employment-based, second preference) green card might be your pathway. This category is designed for members of professions holding advanced degrees (master’s or higher) or its equivalent (a bachelor’s degree plus 5 years of progressive work experience).
Alternatively, if you’re a skilled worker, professional, or fall under the “other worker” category, the EB-3 (employment-based, third preference) green card could be your route to permanent residency.
Navigating these options can be complex, but that’s where our expertise comes in. At Berardi Immigration Law, we don’t just process applications – we partner with you to understand your unique situation, identify the best path forward, and turn your American dream into reality. Our team of experienced immigration attorneys is committed to providing personalized, strategic guidance every step of the way.
Green Card Process
There are three steps to the Green Card process for PERM EB-2 and EB-3 cases.
1. Testing of the U.S. Job Market
Both 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.
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.
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 employers internet site;
- one ad on job search web sites;
- one ad on state job bank for 30 days;
Advertisements cannot be tailored to an applicants 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.
In addition, 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 meet the prevailing wage rate for the occupational classification in the area of employment. To confirm this figure, the employer is required to submit a request to the DOL for a Prevailing Wage Determination (PWD). The current processing timeline for the PWD is about 4 months.
Timeframe and costs for this step:
- The processing times for this type of green card vary based on the U.S. Department of Labor and USCIS workloads. Contact Berardi Immigration Law for current updates.
- 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 Form I-140 Immigrant Petition with USCIS
Once the PERM application is certified by the DOL, a a Form I-140 Immigrant Petition can be filed with U.S. Citizenship and Immigration Services (USCIS). Among other details, this petition requires proof of PERM certification, information about the employer (including its ability to pay the proffered wage to the applicant), evidence that the applicant holds a qualifying advanced or professional degree, and evidence that the applicant has gained specific skills required of the position.
Premium Processing service is available for EB-2/EB-3 Form I-140 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 6-12 months depending on government processing times (varies) and location of service center.
- Premium Processing (optional): response on the petition in 15 business days with an additional fee.
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 Form I-140 Immigrant Petition 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 residence at the time of filing, status in the U.S., future travel and work plans, and the applicants 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 who 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 States Visa Bulletin each month. Berardi Immigration Law will assist in this complex analysis and confirm the filing strategy.
Important Considerations for Adjustment of Status Applicants
When filing an application for Adjustment of Status (AOS), it’s crucial to understand the implications for travel and work authorization:
- Travel Restrictions: Once you’ve filed your AOS application, you generally should not depart the United States until you receive travel authorization, also known as Advance Parole. Leaving without this document may result in USCIS considering your AOS application abandoned.
- Advance Parole: This travel authorization is typically issued concurrently with your Employment Authorization Document (EAD). It allows you to travel internationally while your AOS application is pending without abandoning your application.
- Employment Authorization: Along with Advance Parole, you’ll receive an Employment Authorization Document. This allows you to work legally in the U.S. while your AOS application is being processed.
Exceptions for H and L Visa Holders: In certain situations, if you’re maintaining valid H or L nonimmigrant status, you may be able to travel internationally before receiving Advance Parole without adverse consequences to your AOS application. However, it’s crucial to consult with an immigration attorney before making travel plans in this situation.
At Berardi Immigration Law, we understand the complexities of the AOS process and can provide guidance tailored to your specific circumstances. Our goal is to ensure you navigate this process smoothly while maintaining compliance with all USCIS regulations.
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 Form I-140 Immigrant Petition has been approved by the service center, USCIS will then send the case to the National Visa Center (NVC). The NVC is essentially the document-intake center for all embassies and consulates worldwide. Here, the applicant will 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 the documentary requirements are met, the NVC will 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 his or her 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 4-6 months after the Form I-140 petition 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 can 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 administratively 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.
PERM Labor Certification (EB-2 & EB-3): Frequently Asked Questions
What is PERM labor certification?
PERM (Program Electronic Review Management) is the process by which the U.S. Department of Labor certifies that there are no able, willing, qualified, and available U.S. workers for a specific position, and that hiring a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. An approved PERM certification is generally required before an employer can file most EB-2 and EB-3 immigrant petitions.
Which green card categories require PERM?
Most EB-2 and EB-3 employment-based green card categories require PERM labor certification before an I-140 petition is filed. Since the employer is sponsoring a specific position rather than the individual self-petitioning. Notable exceptions include EB-2 National Interest Waiver petitions, which waive the labor certification requirement, and EB-1 categories, which do not require PERM at all.
What is a prevailing wage determination, and why does it matter?
The first step requires the employer to request a prevailing wage determination from the Department of Labor, which sets the minimum wage the employer must offer for the position based on factors like job duties, requirements, and geographic location. The offered wage must meet or exceed this determination throughout the PERM process and, ultimately, the employee’s actual employment.
What does the required recruitment process involve?
Employers must then conduct a structured recruitment campaign to test the U.S. labor market, which generally includes placing a job order with the state workforce agency, two Sunday print advertisements (or equivalent), and at least three additional recruitment steps chosen from a list of options such as job fairs, employer websites, job search websites, on-campus recruiting, or trade organization postings, with additional requirements for professional occupations.
How long does recruitment need to run before filing?
Recruitment activities generally must be completed, and the required 30-day quiet period for U.S. worker applications must pass, before the employer can file the PERM application. The overall recruitment and waiting period typically spans a couple of months at minimum before filing.
What happens if a qualified U.S. worker applies during recruitment?
The employer must review all resumes and applications received in response to the required recruitment campaign, documenting, with lawful job-related reasons, why any U.S. applicant was not hired. If a qualified, willing, and available U.S. worker is found during recruitment, the employer generally cannot proceed with the PERM application, though they are not required to hire that U.S. worker. If a qualified worker is rejected without a lawful business reason, this can jeopardize the PERM application.
How long does the PERM process typically take?
Timelines vary based on Department of Labor processing volume and whether the case is audited, but the full process, from prevailing wage determination through recruitment, filing, and adjudication, often takes many months to more than a year, with audited cases taking meaningfully longer.
What is a PERM audit, and why do cases get audited?
An audit occurs when the Department of Labor selects a PERM application for closer review, either randomly or because something in the filing raised a flag (such as a specific requirement that appears tailored to the foreign worker). During an audit, the employer must submit detailed supporting documentation of the recruitment process and other case elements within a set deadline.
Can the job requirements be tailored to match the foreign worker’s qualifications?
No. Job requirements listed in a PERM application must reflect the employer’s actual minimum requirements for the position, based on business necessity, and cannot be inflated or narrowly tailored specifically to match the foreign worker’s background in a way that would unfairly disqualify otherwise qualified U.S. workers.
What is “business necessity,” and when does it apply to PERM job requirements?
Business necessity comes into play when a job requirement exceeds what the Department of Labor considers “normal” for the occupation, such as requiring a foreign language or an unusually high level of experience. In these cases, the employer generally must document that the requirement is essential to perform the job duties in a reasonable manner.
Does PERM require the employer to prove they can pay the offered wage?
Yes, but that showing is generally made later at the immigrant petition (Form I-140) stage rather than during the PERM application itself. The employer typically must demonstrate an ongoing ability to pay the certified wage from the priority date (estimated by filing the PERM application) until the employee obtains permanent residence.
What happens after PERM is certified?
Once the Department of Labor certifies the PERM application, the employer generally has 180 days to file the Form I-140 immigrant petition with USCIS, using the PERM certification as supporting evidence and establishing the applicant’s priority date for visa bulletin purposes.
Does PERM certification guarantee a green card?
No. PERM certification only confirms the labor market test and wage requirements have been satisfied; the employer must still file and obtain approval of the Form I-140 petition, and the foreign national must still complete adjustment of status or consular processing once a visa number becomes available. This may involve additional waiting time depending on the applicant’s country of birth.
What are common reasons a PERM application is denied?
Common issues include recruitment that doesn’t strictly follow the required steps or timing, job requirements that appear tailored to the foreign worker without adequate business necessity justification, failure to document lawful reasons for rejecting qualified U.S. applicants, or errors and inconsistencies between the prevailing wage determination and the final application.
How far in advance should an employer start the PERM process?
Because PERM involves a prevailing wage determination, a structured recruitment campaign, mandatory waiting periods, and potential audits, employers are strongly encouraged to begin the process at least 18 months before the employee’s intended green card filing, particularly for employees approaching visa status limits. It can take up to three years to obtain an approved I-140. You should consult an expert immigration attorney to discuss timing considerations, especially for underlying nonimmigrant categories.