Permanent Residency Through Labor Certification Processing

This article will summarize the procedure to obtain U.S. Permanent Resident status (the so-called “green card”) via employment and it will explain briefly the information and actions needed from the employer and the foreign national in order to process the case.  The procedure to obtain a green card is a multi-stage process.  Under procedures initiated in March 2005 (PERM), the application is submitted electronically to a centralized Department of Labor (DOL) processing center in Atlanta.  The second stage involves filing a petition with the Citizenship and Immigration Services (formerly INS) regional office.  At the final stage, the application is processed at the CIS regional service center (and a personal interview is generally waived) or there is an option to attend a final interview at a U.S. Consulate in the employee’s home country.

Stage I – Labor Certification

 

The first stage of the process, the labor certification application, is the most labor intensive as our firm is working concurrently on all three, interrelated stages of the application. First, the U.S. labor market must be tested to determine if there is a qualified and available U.S. worker. The application must detail the recruitment steps taken by the employer during the six month period immediately before filing the application.  DOL regulations describe the types of advertising used for the recruitment process and the timing of the recruitment efforts. Detailed documentation in support of the application–including the resumes of all applicants and the reasons why they might have been found unqualified must be retained by the employer for five years, and it is subject to audit by DOL. We will assist in compiling this documentation.

 

In order to develop the content of the application and advise regarding the recruitment process, we will request detailed information from the employer concerning:  the job duties and minimum job requirements; which specialized skills are essential to perform the job; whether any of the essential skills may be easily acquired via brief training;  the offered wage for the position; whether there have been recent layoffs in positions similar to the job offered to the sponsored foreign worker; plus the education, experience level, date of hire, and salary of the foreign national and other employees who have the same job title/grade and are employed in the same location as the sponsored worker.

 

From the employee we will request detailed information concerning:  the job duties being performed; which specialized skills or technologies are essential to perform the job; his education and previous work experience; when/where he acquired the particular skills which are essential to performing the present job; and how to document that he possessed those skills prior to the current position.  Often it will be necessary for the employee to contact previous employers in order to obtain letters or other documents verifying the skills and experience acquired in those previous jobs. Complete academic records, including transcripts of educational courses taken, must be provided by the foreign national.  Education obtained outside the U.S. must be evaluated by an expert academic credential evaluator in order to determine its equivalency to U.S. academic degrees.   The commencement of advertising/recruitment (see below) may be postponed until the employee has obtained the necessary letters and other employment verification documents to support a viable application as it is critical that each and every job requirement in the first stage (labor certification) be amply documented in preparation for the second stage of processing (the I-140 petition).

 

It is important also to demonstrate that the employee has maintained legal status in the U.S. For example, lapses in legal status triggered by periods of unemployment while in a working non-immigrant classification, such as H-1B or L-1, or periods of unauthorized employment, or employment without authorization before certain applications are filed in the case of H-1 portability or approved — all can impact one’s application.  While one might still be able to immigrate, the handling of such complexities often can result in extra legal fees.  Similarly, the foreign national must provide detailed information regarding any arrests or contacts with government authorities, even for minor driving related offenses, or for offenses later expunged.  Gathering and evaluating this type of documentation occurs at the initial stage of permanent residency processing but it is used for the submission of stage three processing of the application – either adjustment of status (AOS) or consular processing.

Recruitment of U.S. Workers

 

As part of developing the application, we will review and evaluate evidence of the company’s recent recruitment activity for the job in question (or closely related jobs in the same occupational specialty) to determine if any of it can be used to support the application under development.  New ads will be published, as needed, to supplement the company’s recent efforts and/or to conform the recruitment activities and results to PERM regulations.

 

If the job is a professional position, DOL requires the following mandatory recruitment steps for a PERM application:  two advertisements in Sunday editions of the appropriate major newspaper for the area where the job is being offered; a 30-day job order to be posted via the State Workforce Administration Office (in California this is the EDD); a 10-day notice of filing to be posted in the workplace (e.g. on the employee bulletin board or other locations where employees will see it); plus a notice to be promulgated via any and all in-house media (e.g. intranet) that the company normally uses to inform employees of job openings.

 

The mandatory recruitment steps are to be supplemented by three of the following optional methods which may advertise either the specific job opening or a general occupational need:  advertising in a local or ethnic newspaper, an ad in a trade or professional journal, participation in a job fair, listing the opening on the employer’s website (if there is one), advertising the job via an internet job search site (e.g. monster.com), an employee referral bonus program, listing with a job referral/job search firm, advertising on radio or TV, on-campus recruitment, or posting via a campus placement office. (Note: the advertising required to sponsor a non-professional job is less extensive.)

 

If no advertising, or insufficient advertising, has been done in the last six months, we will assist the employer to develop and run new ads to support the application.  We may require additional advertising before we deem a particular application sufficiently strong to file.  Once recruitment activities have been completed, there is a mandatory 30 day waiting period prior to filing.  In general, preparation of the PERM labor certification application, plus advertising and recruitment (and evaluation of applicants) to support it, takes approximately 3-4 months if complete information is available and everything proceeds smoothly.

Prevailing Wage

 

The salary paid to the foreign worker must meet or exceed what the DOL finds to be the “prevailing wage” for the particular occupation.  A salary range for the job is permitted as long as the bottom of the range meets the prevailing range of pay for the occupation.

 

While preparing the application we will obtain a written determination from the DOL regarding the wage.  A new, national system for issuing prevailing wage determinations took effect in January 2010.  The turnaround time to receive a wage determination is currently about 10 weeks.

Establishing a Priority Date

 

Filing the PERM labor certification application will establish a “priority date” for purposes of permanent residency issuance.  Permanent resident visas (green cards) are issued on a first-come, first-served basis within particular country categories for which the U.S. Congress has set annual quotas.  The priority date marks the alien’s place in the queue awaiting visa issuance. We need to know if the foreign national ever filed another PERM application and received an I-140 approval because the priority date of that application can be preserved and be used for the new application.

Stage II – The Immigration Petition

 

Once the DOL has approved the labor certification, a petition (the I-140 Immigrant Worker Petition) for permanent resident classification is filed with the US CIS (Immigration).  In support of the petition we must provide evidence that the alien meets each of the particular job requirements listed in the labor certification, e.g. via copies of diplomas, letters from previous employers, and other evidence to verify the nature of previous employment.  Thus it is very important that this evidence be planned for (and, ideally, acquired) before we file the first stage (labor certification) application.  In the I-140 petition we also must disclose current financial information concerning the company sufficient to show CIS that the employer is solvent and capable of providing wages and employment on a continuing basis.  For a large, public company this can be accomplished with a published annual report.  A privately owned company with at least 100 employees may issue a letter from a financial officer.  Companies with fewer than 100 workers must provide a copy of an audited financial statement or the most recent corporate tax return.  Paycheck stubs showing payment of the “prevailing wage” from the date the labor certification was filed are also helpful.

 

Approval of the I-140 petition “locks in” the priority date, reserving it for that individual to use in connection with any subsequent application or petition.  If a green card number is unavailable, approval of the I-140 also entitles the worker to a 3-year extension of H-1B status beyond the usual 6-year limit, should that additional time be needed for the applicant to complete the green card process.

Stage III – The Adjustment of Status Application

 

Once the immigration petition has been approved and assuming there is no backlog in the visa issuance quota, we can file the third (final) stage application.  In the final stage we request “adjustment” of the alien’s status from nonimmigrant to immigrant.  The final paperwork is submitted by mail to the CIS service center and no final interview is required in many cases.

 

The information and documentation required at this stage from the foreign worker consists of fingerprints, medical exam, personal and family biographical information, birth and marriage certificates, personal tax returns, copies of prior CIS/INS actions (e.g. visas, I-94 cards, student I?20 forms, approval notices, etc.).  The company must issue a letter reiterating its intention to employ the worker, and it should provide evidence that the alien is being paid at or above the prevailing wage for the occupation, as listed in the labor certification.

 

In most cases we request that CIS issue an “EAD” (Employment Authorization Document).  The EAD is supposed to be issued in 90 days or less, while the adjustment application may take approximately six months to be approved, depending on visa availability, agency backlogs, and police clearances.  EADs authorizing employment can be issued for the spouse and children at this point in the process.  Similarly, travel permits (“Advance Parole”) can be obtained in approximately three months for the family members.  In many cases, though, it is advisable for the applicants to retain their H-1B or other non-immigrant status during the pendency of the permanent residency processing.  We will recommend the best course, on a case-by-case basis.

 

A provision in the law permits foreign workers who filed a labor certification application at least one year before that individual’s six-year H-1B expiration date to apply for 1-year extensions of H-1B status beyond the usual six-year limit.  (Upon approval of the I-140 petition, a 3-year extension can be obtained if visa numbers are backlogged.)

Estimated Processing Times

 

Currently, applications are usually approved in 5-6 months.  At the same time, there continue to be denials for unexpected or incorrect reasons, perhaps due to insufficient training of new DOL staff.

 

DOL audits of applications have increased.  Recent statistics show that approximately 35% of applications gets audited and others are selected for supervised recruitment.  In an “audit” the employer is required to submit all of the back up documentation (e.g. ads, recruitment summary, business necessity justification for exceeding the normal job requirements, foreign language documentation, etc) that was not submitted with the on-line filing.  Audits increase the odds of denial because DOL may second guess the employer’s reasons for rejecting U.S. applicants.  Audits also increase the processing time by approximately one year.

 

DOL has also started to require that some employers engage in “supervised recruitment.”  This process entails the placement of multiple detailed ads for the job opportunity with resume responses directed to Department of Labor, not the employer.  DOL determines which employers must use the “supervised recruitment” process depending on the occupation, skill levels, and geographic region. DOL conducts research to determine if these factors impact the availability of qualified U.S. applicants. In other words, DOL may feel that there is no labor market shortage for the job in question and it may want a higher burden of proof from the employer.

 

Under the existing system the total estimated processing time at the various governmental agencies (DOL, CIS, DOS) is affected by several factors:  (a) the huge volume of L/C applications; (b) increased scrutiny of labor certification applications brought about by an economic conditions and company layoffs in the news; (c) agency resource reductions, reallocations and new priorities; (d) DOL audits; (e) supervised recruitment, and (f) the annual quotas set by Congress. Agency processing times vary, depending at any given time on the size of agency backlogs as well as further changes in processing procedures.  We monitor agency processing times closely, as well as all changes in the visa processing backlog based on Congressional quotas.

Caution:  No Jobsite Transfers or Significant Promotions While Application Pending

 

The job offered at the time of filing must be substantially the same job that the foreign worker is performing until the final stages of permanent residency. It is very important that once the application has been filed, there can be no promotions (to a significantly different job) or transfers (to a worksite outside the local area) of the foreign worker.  The exception to this involves job changes within the same overall occupational category and those may only be permitted once the sponsored worker is at least six months into the third stage of processing and the second stage (the I-140 petition) has been approved.  Therefore, it is critically important that we be informed of possible job changes before they take effect so that we can advise on the potential impact on the pending application.  Please notify us promptly of any proposed changes in salary, job title, or work location.  The foreign national may receive normal pay increases and bonuses.  If we are notified of job changes, we can help to integrate career progress with the green card application process.

Caution:  No Unauthorized “Moonlighting,” Self Employed Consulting or other Employment

 

Temporary work authorization (H-1, L-1 or TN) only authorizes employment with the sponsoring employer and no other entity. The foreign national may not engage even in self employment without securing a separate work permit for that employment.  Without the work permit, such employment is viewed as “unauthorized employment” and may put the application in jeopardy. 

Family Members

 

Family members, consisting of a spouse and any children under the age of 21 years old, can be included in one’s application.  The preparation of their applications requires documentation of the family relationship (marriage/divorce and birth certificates).  If they have lived in the United States, we need evidence of their maintenance of legal status.  Spouses who have been employed in the U.S. in a valid non-immigrant classification or otherwise; spouses who may reside in a different city because of temporary separations due to restricted job opportunities, and marriages entered into within two years of the final stage processing present unique challenges and extra documentation and work is involved in the preparation of their applications.

Monitoring Your Case

Information regarding average PERM processing dates can be viewed on the site http://icert.doleta.gov.  As improved monitoring methods become available, we will notify our clients.  Individual case status information is available at this time under the PERM processing system (but only to the attorney and/or the employer representative).

 

During the I-140 and I-485/AOS stages, case status can be checked via the USCIS website (www.uscis.gov) once we have a filing receipt which shows the file number assigned by CIS.  We encourage clients to use this method to monitor the progress of your case.  We will, of course, inform you immediately of any news concerning a pending application or petition.

 

Information concerning visa backlogs is available (updated monthly) on the State Department website www.travel.state.gov.

 

Thank you for your cooperation.  Please do not hesitate to contact this office if you have any questions concerning the above.  Watch for new developments to be reported on our website, along with featured articles on immigration topics.

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