Green cards through employment

(PERM)

Acquiring a U.S. green card through employment is a multi-step, multi-agency  process. 

Step 1: PERM Labor Certification

Labor certification, commonly known as PERM, is a very complex process. The main point of the PERM process is to demonstrate to the DOL that no willing and qualified U.S. workers applied for the job.

PERM Step 1: Prevailing Wage Determination Request

For the first step in the PERM process, the employer makes a prevailing wage request to the U.S. Department of Labor (DOL). The prevailing wage request provides DOL with information about the offer such as job requirements, job duties, and the worksite location. The DOL uses this information to issue the employer a prevailing wage determination (PWD), stating the required wage for the specific job position in the specific worksite location.

PERM Step Two:  Recruitment

The recruitment stage is the most critical stage of the PERM process.   Again, the central point of the PERM process is to demonstrate to the DOL that no willing and qualified U.S. workers applied for the job. The sponsoring employer must conduct “good faith” recruitment, which means the recruitment must be genuinely calculated to attract any available U.S. workers. 

The recruitment rules are extremely complex.

 

For purposes of PERM recruitment, nearly all jobs can be categorized as professional or non-professional occupations. Professional occupations generally require at minimum a Bachelor’s degree. The recruitment process will vary depending on whether the occupation is professional or non-professional. All petitioning employers (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest to having conducted the recruitment prior to filing the application.

Employers using the normal PERM process must conduct recruitment no more than 180 days but no less than 30 days prior to the date of submitting the PERM ETA 9089 application.

Mandatory PERM Recruitment Activities:

  1. Job Order: The employer must place a job order with the local SWA for a period of 30 days. 

  2. Advertisements in Newspaper or Professional Journals:
    The employer must place an advertisement in a newspaper of general circulation on two different Sundays. If the job offer requires experience and an advanced degree, the employer may place an advertisement in an appropriate national professional journal in lieu of one of the Sunday advertisements.

  3. Internal Posting:
    The employer must post an internal job posting (also known as a notice of filing) with all DOL required information for a period of 10 consecutive business days. If the position is a union position, the employer must give proper notice to the bargaining representative. The internal job posting must list the wage offered for a position filed under the regular PERM process.  An internal job posting must state the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; state that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; and provide the address of the appropriate Certifying Officer.

  4. Additional Recruitment for Professional Positions: If the position offered is a professional position (all EB-2 cases and most EB-3 cases that require a degree), the PERM regulation requires the employer to post the job in at least three of the following forms during the recruitment period mentioned above (with the exception that one activity may be within 30 days prior to the date of submission):

  • Job fairs;

  • Employer’s web site;

  • Job search web site other than employer’s;

  • On-campus recruiting;

  • Trade or professional organizations;

  • Private employment firms;

  • An employee referral program, if it includes identifiable incentives;

  • A notice of the job opening at a campus placement office, if the job requires a degree but no experience;

  • Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;

  • Radio and television advertisements


Once the advertisements have run, the employer is required to interview U.S. applicants who posses the minimum requirements for the position. The employer must have lawful, job-related reasons for rejecting a minimally qualified U.S. worker, and include that reasons in the recruitment report. 

Recruitment must be performed during the 180 days prior to filing the labor certification application, but must also be completed 30 days before filing the application.

 

We highly recommend you consult with an experienced attorney at ILG prior to conducting any recruitment. PERM recruitment is not always aligned with normal recruitment efforts.  Mistakes in recruitment cannot be corrected after the labor certification application has been filed.
 

PERM Step 3: Submitting the ETA 9089

After the recruitment is complete, the employer must file the PERM application with the DOL using ETA Form 9089 (provided no qualified and willing U.S. workers applied for the job position). The ETA Form 9089 again provides the DOL with information on the job opportunity (such as the worksite location, duties, requirements, and prevailing wage), information on the employer’s recruitment process (such as where the employer placed the ads and on what dates), and information on the foreign worker (such as the worker’s place of birth, education credentials, and work experience).

After filing the ETA Form 9089, it takes 3-8 months for the DOL to adjudicate the PERM. The DOL can (1) approve the PERM (2) deny the PERM or (3) audit the PERM. If the PERM is audited, the DOL will ask the employer to provide evidence of and results of recruitment. After the employer responds to the audit request, the DOL will review the new evidence and either approve or deny the PERM.

Please note that it is solely the employer's responsibility to pay for the PERM advertisements. By law, the foreign worker is prohibited from paying for any of the costs associated with PERM, which include the advertisements and attorney fees.

PERM Timing Issues:

  1. The SWA job order must run for 30 consecutive calendar days (which includes weekends).

  2. The internal posting notice must be posted for ten consecutive business days (which does NOT include weekend days, unless the employer can show that its operations are routinely open on weekends, such as would be true at a hospital. 

  3. The employer must wait at least 30 days from the date that the job order or posting notice expires (whichever expires latest) to submit the ETA Form 9089 to the DOL.

  4. None of the advertisements can be older than 180 days at the time of filing. 

  5. One of the additional ads for professionals  (NOT the job order, or the posting notice or the Sunday newspaper ads) can be running during the 30-day waiting period.

STEP 2:  I-140 Petition for Immigrant Worker 

After receiving the approved PERM, the employer must then proceed to the next step of the process, which is filing an I-140petition on behalf of the foreign employee with USCIS.

An I-140 petition, or Immigrant Petition for Alien Worker, is filed to petition an alien worker to become a permanent resident in the United States. The employer must file an I-140 petition within 180 days from the date the Labor Certification is approved by the U. S. Department of Labor. An I-140 Petition may be filed without a Labor Certification where the beneficiary qualifies under EB-1 classification.

If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her UNLESS the I-140 is revoked by the USCIS for misrepresentation.

If such a person changes employers and the approved I-140 is not revoked, the priority date will remain the old one, even though he or she have to process the labor certification and I-140 again with the new employer.  It does not matter where in USA the new job is located, what the new job title is, or whether the new job falls under EB-2 or EB-3.  The priority date is still transferrable.

At ILG, business and employment immigration is one of our primary focus areas. Our lawyers have assisted many employers and professionals in securing green cards through employment. Our lawyers offer experienced, comprehensive representation in the green card application process.  Please contact us to learn more about how we can assist you. 

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