The most common form of green card sponsorship through employment is the PERM labor certification. Often, after obtaining a nonimmigrant employment visa. The most popular nonimmigrant employment visas are H-1B, E-1, E-2, L-1, and O-1. Although F-1, J-1, P, TN, and E-3 may be pathways to permanent residency as well.
Alternatively, employment-based immigrant visas not requiring labor certification are available, including EB-1A, EB-1B, EB-1C, EB-2 NIW, EB-4, and EB-5. These visas automatically provide an employment-based green card but have higher criteria to obtain and longer processing times than nonimmigrant visas.
Along with the principal beneficiary lawful permanent resident status is available to their spouse and dependent children. Please see this article for information regarding family sponsorship.
The PERM Labor Certification Process
For employers looking to fill permanent positions with qualified non-U.S. workers, the PERM labor certification process is the most common. 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 sponsorship. It consists of three steps: labor certification, I-140 immigrant petition, and I-485 green card application.
STEP 1: Navigating the DOL PERM Labor Certification Process
The First Step in the Green Card Process through PERM Labor Certification is the PERM process with the DOL. The PERM filing process itself is in 4 parts.
PART 1: Defining the Duties and Minimum Requirements of the Prospective Position
The first part of 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:
- These are the actual minimum requirements for this specific position; and
- 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 submits a prevailing wage request to the DOL. In the request, the employer will include information about the job duties, requirements for the position, and work location.
PART 2: Submitting a Prevailing Wage Request (PWR) to the DOL
The second part of the DOL process follows the 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 must 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 employer may begin recruiting for the position.
PART 3: Testing the Labor Market with Recruitment
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. Newspaper ads for the position must run in the major Sunday paper in the area 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. Form 9089, along with a summary of the requirements, recruitment, and the beneficiary's qualifications.
PART 4: 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 I-140 employer 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.
STEP 2: I-140 Immigrant Petition
The Second Step in the Green Card Process by employer sponsorship through PERM labor certification is the employer's I-140 immigrant petition filed to USCIS with the Certified PERM labor certification form. Once the DOL certifies a PERM an employer can file an I-140 visa petition with the USCIS. The PERM Form 9089 is signed by both the foreign worker and the employer attesting to the validity of its contents. 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 the employer's ability to pay the PERM PWD.
The USCIS can take several months to decide on the petition. I-140 processing time is presently for about 8 months. However, for an additional fee, the process can be expedited. Premium processing for PERM based I-140 filings is currently available permitting a decision in 15 business days. Generally, once the I-140 petition is approved by the USCIS the worker may file an I-485 green card application or immigrant petition.
STEP3: 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 to the USCIS by the sponsored employee. The I-485 id filed to USCIS 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 an immigrant visa unavailability the person must wait until the visa priority date becomes current and visas become available to them. The visa priority date is the date the Form 9089 is filed with the DOL. EB-2 for most countries have visa availability. Most EB-3 positions for persons from most countries have visa availability. Persons born in India or China will have EB-2 or EB-3 wait times before a green card application or immigrant visa may be filed by them.
STEP 4: Green Card to Citizenship
For most clients, naturalization is the next step following obtaining a green card that allows them to live and work in the U.S. The naturalization application may be filed 4 years and 9 months from the issue date of the green card. For more information about the naturalization process please see our naturalization article.
Get a Green Card During the Trump Administration
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.
These are the general requirements, but some unique situations may require additional steps. For more information please email or call (650) 588-7100 to find out more.
The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.
This answers most of the frequently asked questions which we receive in our office. If after reading this you have questions about immigrating to the United States or any other immigration matters, please call Litwin & Smith and arrange a consultation at either our South San Francisco or Santa Clara office. There is an initial consultation fee for the first half-hour.
We look forward to assisting you.