The employment-based permit procedure is a multi-step process that allows foreign nationals to live and work permanently in the U.S. The process can be made complex and prolonged, however for employment those looking for permanent residency in the U.S., it is an important step to achieving that objective. In this article, we will go through the actions of the employment-based permit procedure in detail.
Step 1: PERM/Labor Certification
The PERM/Labor Certification procedure is normally the first step in the employment-based permit process. The process is developed to guarantee that there are no competent U.S. employees readily available for the position and that the foreign employee will not adversely affect the incomes and working conditions of U.S. employees.
Submit the Prevailing Wage Application
The employer begins the PERM procedure by drafting the job description for the sponsored position. Once the job details are completed, a prevailing wage application is sent to the Department of Labor (DOL). The dominating wage rate is defined as the typical wage paid to likewise used workers in a specific occupation in the location of intended work. The DOL problems a Prevailing Wage Determination (PWD) based on the particular position, job duties, requirements for the position, the area of desired work, travel requirements (if any), to name a few things. The prevailing wage is the rate the employer need to at least provide the permanent position at. It is also the rate that should be paid to the employee once the permit is gotten. Current processing times for prevailing wage applications are 6 to 7 months.
Conduct the Recruitment Process
PERM regulations require a sponsoring company to check the U.S. labor market through different recruitment methods for "able, ready, certified, and readily available" U.S. workers. Generally, the company has 2 alternatives when deciding when to begin the recruitment process. The company can start advertising (1) while the dominating wage application is pending or (2) after the PWD is issued.
All PERM applications, whether for an expert or non-professional profession, require the following recruitment efforts:
- 1 month job order with the State Workforce Agency serving the location of intended employment;
- Two Sunday print advertisements in a newspaper of basic circulation in the location of desired employment, most proper to the occupation and most likely to bring responses from able, willing, certified, and offered U.S. employees; and
- Notice of Filing to be published at the task website for a period of 10 days.
In addition to the necessary recruitment discussed above, the DOL needs 3 extra recruitment efforts to be posted. The employer should choose 3 of the following:
- Job Fairs
- Employer's business site
- Job search website
- On-Campus recruiting
- Trade or professional company
- Private work companies
- Employee recommendation program
- Campus placement office
- Local or ethnic newspaper; and
- Radio or TV ad
During the recruitment process, the company may be examining resumes and conducting interviews of U.S. workers. The employer should keep in-depth records of their recruitment efforts, including the number of U.S. workers who requested the position, the number who were spoken with, and the reasons that they were not worked with.
Submit the PERM/Labor Certification Application
After the PWD is issued and recruitment is total, the company can submit the PERM application if no certified U.S. workers were found. Currently the DOL is taking 8 to 9 months to process PERM applications after submission. The day the PERM application is submitted establishes the beneficiary's top priority date and figures out his/her location in line in the green card visa queue.
Respond to PERM/Labor Certification Audit (if any)
An employer is not required to submit supporting documentation when a PERM application is filed. Therefore, the DOL executes a quality assurance procedure in the kind of audits to ensure compliance with all PERM guidelines. In case of an audit, the DOL usually requires:
- Evidence of all recruitment efforts carried out (copies of advertisements placed and Notice of Filing);.
- Copies of applicants' resumes and completed work applications; and.
- A recruitment report signed by the employer explaining the recruitment actions carried out and the outcomes accomplished, the number of hires, and, if relevant, the variety of U.S. candidates rejected, summed up by the specific legal job-related reasons for such rejections.
If an audit is provided on a case, 3 to 4 months are contributed to the total processing time of the PERM application.
Receive the Approved PERM/Labor Certification
If the PERM application is authorized, the employer will get it from the DOL. The authorized PERM/Labor employment Certification confirms that there are no competent U.S. employees available for the position and that the recipient will not adversely impact the salaries and working conditions of U.S. workers.
Step 2: I-140 Immigrant Petition
Once the PERM application has actually been approved, the next step is to submit an I-140 immigrant petition with U.S. Citizenship and Immigration Services (USCIS). The petition needs to include the authorized PERM application and proof of the recipient's certifications for the sponsored position. Please note, depending on the choice category and country of birth, a beneficiary may be eligible to file the I-140 immigrant petition and the I-485 adjustment of status application concurrently if his/her priority date is present.
At the I-140 petition phase, the employer needs to also show its capability to pay the recipient the proffered wage from the time the PERM application is submitted to the time the permit is released. There are 3 methods to show ability to pay:
1. Evidence that the wage paid to the recipient amounts to or greater than the proffered wage (pay-stubs, W-2s);.
2. Evidence that the business's earnings amounts to or higher than the proffered wage (yearly report, income tax return, or audited monetary statement); OR.
3. Evidence that the business's net properties are equal to or higher than the proffered wage (annual report, tax return, or audited monetary statement).
In addition, it is at this phase that the company will pick the employment-based choice classification for the sponsored position. The classification depends upon the minimum requirements for the position that was noted on the PERM application and the worker's qualifications.
There are several categories of employment-based green cards, and each has its own set of requirements. (Please note, some classifications may not need an approved PERM application or I-140 petition.) The categories consist of:
- EB-1: Priority Workers.
- EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability.
- EB-3: Skilled Workers, Professionals, and Unskilled Workers (Other Workers).
- EB-4: Certain Special Immigrants.
- EB-5: Immigrant Investors
After the I-140 petition is filed, USCIS will review it and might ask for additional info or documents by releasing an Ask for Evidence (RFE).
Step 3: Green Card Application
Once the I-140 immigrant petition is authorized, the beneficiary will check the Visa Bulletin to determine if there is an available permit. The real permit application can only be submitted if the beneficiary's top priority date is present, implying a green card is immediately available to the recipient.
Monthly, the Department of State publishes the Visa Bulletin, which sums up the schedule of immigrant visa (permit) numbers and employment suggests when a permit has actually appeared to a candidate based on their choice classification, country of birth, and concern date. The date the PERM application is submitted develops the recipient's top priority date. In the employment-based migration system, Congress set a limit on the number of permits that can be released each year. That limitation is currently 140,000. This implies that in any given year, the optimum variety of permits that can be issued to employment-based candidates and their dependents is 140,000.
Once the recipient's priority date is existing, he/she will either go through modification of status or consular processing to get the permit.
Adjustment of Status
Adjustment of status involves applying for the permit while in the U.S. After a change of status application is submitted (Form I-485), the recipient is alerted to appear at an Application Support Center for biometrics collection, which generally includes having his/her photo and signature taken and being fingerprinted. This information will be used to conduct required security checks and for eventual production of a permit, employment permission (work authorization) or advance parole file. The recipient might be alerted of the date, time, and area for an interview at a USCIS workplace to answer concerns under oath or affirmation concerning his/her application. Not all applications need an interview. USCIS authorities will examine the beneficiary's case to determine if it fulfills one of the exceptions. If the interview is effective and USCIS authorizes the application, the recipient will get the permit.
Consular Processing
Consular processing involves applying for the green card at a U.S. consulate in the beneficiary's home country. The consular workplace establishes a consultation for the recipient's interview when his/her priority date ends up being present. If the consular officer grants the immigrant visa, the recipient is offered a Visa Packet. The recipient will pay a USCIS Immigrant Fee which is used by USCIS to process the Visa Packet and produce the permit. The recipient will provide the Visa Packet to the U.S. Customs and Border Protection (CPB) officer at the port of entry. The CBP officer will examine and determine whether to confess the beneficiary into the U.S. If confessed, the beneficiary will receive the permit in the mail. The green card acts as proof of long-term residency in the U.S.
