Permanent Labor Certification (3 Step Process)
Step 1: Permanent Labor Certification
In general, the first step for most employment based immigration sponsorship is the labor certification. If the foreign national is of extraordinary or exceptional ability or an outstanding researcher or professor, labor certification may not be necessary. Note that outstanding professors must be tenure-track to qualify for the classification.
The Labor Certification is a test of the U.S. job market to confirm with the Department of Labor (DOL) that there are no willing, qualified and able U.S. workers to fill a foreign national position.
The PERM process requires that a recruitment period be completed prior to filing the labor certification application. There are specified recruitment steps that need to be completed, and they are:
- The employer must place two advertisements on two different Sundays in a newspaper of general circulation that covers the area of intended employment. The ads may be placed on consecutive Sundays. The wording of the ad must comply with DOL requirements.
- The employer must place a job order with the State Workforce Agency (SWA) for a period of 30 days.
- The employer must use any and all in-house media, whether electronic or printed, in accordance with its normal procedures used for recruitment for similar positions in the organization. (For example, if the company normally posts open positions on a company intranet, then the position must also be posted.)
- The employer must post a notice of the job opportunity for at least ten consecutive business days at the place of intended employment.
- The employer must complete THREE different additional recruitment steps, if the position is professional in nature. The employer may choose from three of the following: a) job fairs; b) employer’s website (world wide web, not company intranet); c) job search website other than the employer’s; d) on-campus recruitment; e) trade or professional organizations; f) an employee referral program, if it includes identifiable incentives; g) a notice of the job opening at a campus placement office, but only if the job requires a degree and no experience; h) local and ethnic newspapers, to the extent that they are appropriate for the job opportunity; i) radio or television advertisements; and j) private employment/recruitment firms.
How Can We Help
Dehra Miotke offers advice on the appropriate EB-2 or EB-3 category based on the offered position, foreign worker’s background and other factors. See: EB-2 Professionals and EB-3 Skilled / Professional Workers. As most of our readers know, there is a substantial difference between the EB2 and EB3 categories, particularly for India.
If retained, our office will assist the employer with preparing a recruitment schedule and setting up much of the recruitment effort. The employer must remember to keep detailed records of the recruitment effort, and all recruitment must be documented. For example, the employer needs to keep the original newspaper ads, and should print out copies of any on-line advertisement as it is running during the recruitment period (the printout should have a date on it). If the employer uses a private recruitment firm, a copy of the contract for services should be maintained.
If an applicant(s) appears to meet the minimum requirements, the company will have to contact that applicant to arrange for an interview either via telephone or in-person. An employer may only reject an applicant if there is a lawful, job-related reason.
Once the recruitment period has ended, and if the employer is unable to locate an available and qualified U.S. willing worker for the position offered, our office submits Form ETA 9089 on-line to the DOL. The employer is then responsible for maintaining the various recruitment information, a recruitment results report, and a copy of the filed Form ETA 9089 for a period of five (5) years. The Form ETA 9089 is currently taking approximately 4 to 9 months to be processed (unless an audit notification is issued by the DOL).
Step 2: I-140 Immigrant Visa Petition
Once the PERM application has been certified, our office will prepare and file Form I-140, Immigrant Petition for Alien Worker and the required supporting documentation with the U.S. Citizenship and Immigration Service. An immigrant visa petition will demonstrate that the foreign national meets the requirements for the labor certification application position. In addition, one of the supporting documents to be included will be evidence of the financial ability of the company to pay the offered wage as of the date of filing of the labor certification application. Therefore, the company will either submit copies of financial statements, a company annual report, or a letter from the Chief Financial Officer to establish the viability of the company. Currently, the Form I-140 is taking approximately 4 to 6 months to be adjudicated.
Priority Dates and Immigrant Visa a/k/a Green Card Availability
The U.S. allows approximately 140,000 employment based immigrants to become permanent residents each year. The demand has exceeded the supply. For many foreign nationals there is now a wait to apply for permanent residence. To stem the flow of applicants for permanent residence, the Department of State established cut-off dates. In many categories, a foreign national is eligible to apply for permanent residence only if his or her “priority date” is current.
A foreign national establishes a priority date when a labor certification application for him or her is filed, or in some cases, when an I-140 petition for him or her is filed. For a current update of immigrant visa (or green card) availability visit: Visa Bulletin.
Step 3: Adjustment of Status or Consular Processing
The final step of the permanent residence process is the foreign national’s application to become a permanent resident. This process may be done at a U.S. consulate abroad, but it often makes sense for a foreign national to apply to adjust to permanent resident status while in the U.S.
As noted above, an applicant is eligible to apply permanent residence only when there is an immigrant visa (green card) number available for him or her. If a number is immediately available, the foreign national may submit his or her adjustment of status application (together with any dependants) at the same time that the immigrant visa petition (I-140) is filed. As part of the adjustment of status application, a foreign national may apply for an employment authorization document and a travel document (advance parole).
H-1B Maximum Stay
This entire green card process may take many years to complete if visa retrogression remains. This means that an H-1B visa holder may reach his/her six year maximum before the green card process is complete. However, Congress has implemented a law that allows certain individuals who hold H-1B status to extend their status in one year or three year increments past their 6 year limit. The requirements for this law are the following:
- One year H-1B extension: The labor certification has been pending at least 365 days prior to the expiration of the six year maximum stay in the U.S.
- Three year H-1B extension: The Form I-140 must be approved and the employee must be subject to visa retrogression.
The above is a general outline of the employment based green card process where labor certification is required. For more information, please contact Attorney Amit Dehra by telephone at 813.221.0733 or by e-mail at firstname.lastname@example.org or Attorney Shirin James by telephone at 813.221.0733 or by email at email@example.com.