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2019 January Visa Bulletin Read more

Green Card via PERM labor certification & employer sponsorship

The most common form of green card sponsorship through employment is PERM labor certification. While the first employment visas to the US are usually nonimmigrant visas. Because they take less time to obtain. For employers looking to fill permanent positions with qualified non U.S. workers, the PERM labor certification process is advantageous. Under the PERM process, the Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS) collaborate to allow an employer to sponsor a qualified foreign worker.

In the PERM process the employer must prove to the DOL they were unsuccessful in recruiting a qualified U.S. worker for the position through a test of the labor market. The position must be permanent, full time and pay the prevailing wage for that occupation in that geographic area. Below is a brief introduction of the green card process through employment. It consists of three steps: labor certification, immigrant petition, and green card application. You may find our article helpful as well:

Navigating the DOL PERM filing process

The First Step in the Green Card Process through PERM labor Certification is the PERM procexx with the DOL. The PERM filing process itself is in 4 parts. The first part in the DOL process involves defining the duties and the minimum requirements of the prospective position. Extensive care and detail should be used to identify the education, experience, and skill required to perform the duties of the position as the description provided will be critically assessed. Later when filing the PERM Form 9089, the employer will be required to attest to two statements:

1. These are the actual minimum requirements for this specific position; and

2. All others in the group, who perform substantially the same job duties, also met these same minimum requirements prior to being hired into that position. This means no one was hired with less than the stated minimum requirements.

After defining the position the employer needs to submit a prevailing wage request to the DOL. In the request the employer will include information about the job duties and work location.

The second part of the DOL process follows identification of the minimum requirements above. The employer submits a prevailing wage request (PWR) to the DOL. The DOL will provide the employer with a prevailing wage determination (PWD) for the prospective position. The PWD is the minimum wage an employer may pay a sponsored worker under the PERM sponsored immigrant visa. While an employer may ask for a prevailing wage redetermination, if they find the wage unacceptable, it causes delays to the process. Well-crafted minimum requirements can predict the occupation and wage level to the satisfaction of an employer without delays. Once an employer obtains an acceptable PWD, the may begin recruiting for the position.

The third part of the DOL process is the test of the labor market with recruitment. The employer must place multiple advertisements for the prospective worker's job position in addition to filing a job order with the state workforce agency. The newspaper ads for the position must run in the Sunday paper on two different days. For professional positions the employer must use three additional recruitment methods. During this time the employer must timely respond to any applications or resumes submitted by candidates. After the last ad recruitment ends there is a 30 day waiting period required before the employer can move on to filing the PERM.

DOL PERM approval

The fourth and final part of the DOL process is to file the Form 9089 with the DOL and obtain a certification of the recruitment. A Certified PERM is the DOL approval required for filing the immigrant petition. For PERM filings that are not audited the approval time is currently around six months. For audited filings, the processing time increases significantly. Currently, the Department of Labor is randomly auditing about 35% of the PERM labor certification filings. Although, we cannot guarantee a filing will not be audited. Our PERM filings are seldom audited by the DOL. Maybe that is because we prepare our filings with the audit in mind as we perform all the steps along the way. Unlike, most firms who only prepare an audit file after they receive an audit notice. We can't be sure, but maybe it's our reputation for paying attention to all the details that result in our lack of audits. When the PERM is audited the employer has 30 days to submit any required documentation for the audit. The DOL also requires supervised requirement for a limited number of cases from those selected for audit, adding additional time to the approval process.

I-140 petition and I-485 visa application

The Second Step in the Green Card Process by employer sponsorship through PERM labor certification is the employer's I-140 immigrant petition is filed with the Certified PERM labor certification form. Once the DOL certifies a PERM an employer is able to file an I-140 visa petition with the USCIS. The PERM Form 9089 is signed by both the foreign worker and the employer. The employer's I-140 petition includes information about the foreign worker's background used to prove the worker's qualifications as stated on the Form 9089. When completing the I-140 the employer must also provide information about the foreign worker's salary and evidence of their ability to pay it.

The USCIS can take several months to make a determination on the petition. I-140 processing time is presently about 8 months. However, for an additional fee the process can be expedited. Premium processing for PERM based I-140 filings is available permitting a decision in 15 business days. Once the I-140 petition is approved by the USCIS the worker may file an I-485 green card application.

The Third and Final Step in the Green Card Process by employer sponsorship through PERM labor certification is the I-485 green card application filed by the sponsored employee after approval of the l-140 petition or concurrently with the I-140 when an immigrant visa is immediately available. The sponsored employee must complete this step for themselves; the employer cannot file on behalf of the employee. Where there is immigrant visa unavailability the person must wait until visas become available to them. EB2 for most countries have visa availability. Most EB3 positions for persons from most countries have visa availability. Persons born in India or China will have EB2 or EB3 wait times before a green card application may be filed by them.

The PERM process is lengthy and nuanced and seeking the assistance of a legal professional is strongly recommended. Not only can an attorney assist with the drafting and filing of the application, they understand all the steps and can prevent an employer for inadvertently causing the PERM to be delayed or worse yet, denied.

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