immigration 101: the perm labor certification process

The following is a general overview of the PERM labor certification process.

GREEN CARD OVERVIEW
As set forth below, an employer may sponsor a foreign national for a green card by demonstrating a shortage of US workers in the sponsored position. In sponsoring a foreign national for a green card, the employer is stating its intent to employ the foreign national on a permanent basis (in the immigration context, as opposed to a temporary basis). This does not create any employment contract and the employee could still be terminated at any time; it just means regular employment as opposed to temporary employment.

THE PROCESS:

Generally, the green card process entails 3 steps:

Step 1: In the first step, the employer must conduct a recruitment campaign for the permanent position it wishes to offer the employee and prove to the Department of Labor that no U.S. workers applied for the position who were qualified, willing, able and available to fill the position. (Step 1). If the Department of Labor finds that the employer conducted a fair and reasonable recruitment campaign and that it was unable to locate any qualified, willing, able and available U.S. workers for the position, the US Department of Labor approves the Application for Alien Employment Certification certifying labor shortage in the area for the position offered (“labor certification”).

Before you can file the green card case, you must first conduct a recruitment campaign and document the reasons why the applicants were not qualified for the job. It usually takes about 3 months to conduct a recruitment campaign, which must be completed before filing Step 1.   NOTE: Steps 1 and 2 of the green card process do not provide for any work authorization or status, so the employee would still need to maintain separate status for work authorization during these steps of the green card process. 

Here is a summary of recruitment required under PERM:

 1.   The employer will be required to advertise the position in 2 Sunday editions of the local newspaper. (They can be consecutive Sundays).

2.    The employer must post the position internally at the worksite where the position will be based (this is the only posting that requires that the salary be listed).

3.    The employer must post the job in the state Department of Labor’s job bank.

In addition, the employer must also show that it met 3 of the following types of recruitment in the 6 months before we file:

1. Advertised at a Job Fair
2. Conducted On-Campus Recruitment
3. Advertised on the employer’s website (for the public)
4. Advertised with a trade or professional organization
5. Advertised on a job search website (like Monster.com or the newspaper’s online edition)
6. Listed the position with a private employment firm (head hunter agency)
7. Advertised the position with an employee referral program (this only applies if the employer provides an incentive package for employee referrals)
8. Advertised with a campus placement office
9. Advertised with a local (regional) or ethnic newspaper
10. Advertised with radio or TV stations.

Note that it is also necessary to secure a Prevailing Wage Determination from the Department of Labor’s online iCert system, to make sure that the job offer is equal to our higher than the prevailing wage for the occupation in the area of employment.

Step 2: Once the employer’s labor certification application is approved, it must file an I-140, Immigrant Visa Petition on the employee’s behalf with the USCIS. At this step, the USCIS is looking at the sponsored worker’s credentials to determine whether she meets the minimum qualifications for the position offered, and at the company’s financial ability to support the permanent position.

Step   3: In the final stage of the green card process, the sponsored worker (and any dependent family members) are eligible to apply for their green cards by either filing an Application for Adjustment of Status in the United States or by undergoing Consular Processing at the US Consulate in their home country. At this stage, the employee and any dependent family members would also be able to file for Work Authorization, which should come through in about 90 days from the date of application.

** A quota number must be available before the sponsored worker would be able to file his or her Step 3 green card application and, depending on the green card category, there currently is a several year backlog in green card numbers in some categories resulting in a forced waiting period after the Step 2 I-140 is approved before the sponsored worker and any family members would be eligible to file their Step 3 green card applications.