U.S. immigration laws provide for several employment-based immigrant visa classifications. Approximately 140,000 immigrant visas are available each fiscal year for foreign workers (and their spouses and children) who seek to immigrate based on their job skills. If the foreign national has the right combination of skills, education, and/or work experience and is otherwise eligible, s/he may be able to obtain permanent residence ("green card") status in the United States.
There are five categories of employment-based immigrant visas. Most employment based immigration categories require the foreign national must be sponsored by a U.S. employer. The process for obtaining permanent residence based on employment consists of three phases: the labor certification, the immigrant visa petition, and the application for permanent residence.
The first step involved in the process of sponsoring an employee for legal permanent residence is to obtain a labor certification from the Department of Labor. The U.S. employer must obtain a permanent foreign labor certification from the U.S. Department of Labor (DOL) to verify the following:
The Visa Petition
Once the labor certification application has been approved by the DOL, the U.S. employer can file an immigrant visa petition (I-140 Immigrant Visa Petition) on behalf of the foreign national. The I-140 petition is submitted to the U.S. Citizenship and Immigration Services ("USCIS") along with the approved labor certification. At this time, the employer must submit documentation establishing the company's financial ability to pay the employee's proffered wages. In addition, the foreign national employee must submit documents to verify that s/he meets all of the minimum requirements listed on the labor certification.
Application for Permanent Residence
The last and final stage of the employment based permanent residence ("green card") process is the foreign national's application for permanent residence, which can only be filed if an immigrant visa number is available in his/her preference category. The immigrant visa availability is based on the "priority date". If the foreign national is inside the United States, when the priority date is current and an immigrant visa becomes available, s/he can file for "adjustment of status" by filing a Form I-485, Application to Register or Adjust Status. If the foreign national is outside the United State, s/he an apply for an immigrant visa at a U.S. consulate abroad. This is often referred to as "consular processing".
Labor Certification Process Under Perm
PERM is an electronic system used for filing and processing labor certification applications which are required for permanent employment based immigration process. The traditional method of filing labor certification applications was re-designed by the Department of Labor (DOL) to streamline the often complex and lengthy process of obtaining labor certifications. As of March 28, 2005, all foreign labor certifications are now filed under PERM.
Some of the key features of the PERM regulations are:
(a) employer must place advertisement in two Sunday newspaper editions (for positions that require experience and an advanced degree, the employer can substitute an advertisement in a national journal or publication for one Sunday newspaper advertisement);
(b) employer must undertake at least three additional means of recruitment as alternate forms of advertising (see below).
Required Recruitment under PERM:
The employer who wishes to file a labor certification application in most cases must complete the following recruitment steps:-
These two steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification.
Additional Recruitment for Professional Positions
If the position being offered is one that is "professional" in nature, then the employer must undertake some additional "real world" recruitment efforts. If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the 10 following recruitment efforts:
Only one of these efforts may be conducted solely within 30 days of filing the labor certification application. None may take place more than 180 days prior to filing the application.
Professional occupations are those that typically require a bachelor's degree. Even if the employer is not requiring a bachelor's degree for the position, the professional recruitment must occur if the occupation is on the list (as maintained by the DOL). Examples of occupations on the current professional occupations list include: computer and information scientists, research; computer and information systems managers; accountants; computer programmers; computers software engineers; computer systems analysts; database administrators; network and computer system administrators; computer security specialists; network systems and data communication analysts; biomedical engineers; computer hardware engineers; electrical engineers; occupational therapists; sales engineers; and lawyers.
The PERM process requires that the employer complete the recruitment steps prior to filing the application but it does not require that supporting documentation including copies of advertisements, internal postings and recruitment reports be filed with the petition. Under PERM regulations, the DOL will conduct random (or discretionary) audits to ensure that the employer has completed all "pre-filing" requirements and undertaken all the recruitment steps as required and to verify that there were no "available and qualified U.S. workers". The employer must respond to an audit request within 30 days (unless an extension is granted by DOL).
Employer must retain all documentation for 5 years
Under PERM regulations, employers must keep all records related to each labor certification application for five years. This documentation includes all documents related to the PWD, internal notices, documentation of recruitment efforts, recruitment report, and a copy of the ETA 9089.