Employment-based permanent immigration.

Permanent Residency Through Employment

The process of applying for permanent residency based on an offer of employment is normally a three-step process that is likely to take in excess of two to three years to complete.

The first step is called "labor certification," and it is a process for obtaining a certification from the United States Department of Labor that no qualified United States workers are available to fill the position and that the employment of the alien in the position will not adversely affect the wages and working conditions of United States workers.

The United States Department of Labor made significant changes, effective March 28, 2005, to the processes and procedures for acquiring employment based permanent resident status for your current or prospective foreign worker(s) (“labor certification”). These changes are complex but in general allow for a more rapid adjudication of newly and previously filed labor certification applications so long as certain requirements are satisfied.

Below is an overview of the labor certification process, basic qualifying criteria, and how new applications are processed. Enclosed is a copy of the key form that is used in the labor certification process. We have partially completed the form based on information we have, but please review it closely, make corrections and additions as necessary, and return it to this office.

Overview

Obtaining employment based permanent resident status normally requires submission of an immigrant petition to the United States Citizenship and Immigration Services (“USCIS,” formerly, “INS”). In certain cases, employers must first submit a labor certification application with the United States Department of Labor (“DOL”). The standard used by the DOL in making labor certification determination is based on whether:

1. There are not sufficient U.S. workers able, willing, qualified, and available to accept the job at the prevailing wage for that occupation in the area of intended employment;
2. The employment of the foreign employee will not adversely affect the wages and working conditions of the U.S. worker; and
3. The employer has met the procedural requirements of the applicable regulations.

In your specific situation here, points 1 and 2 above are established by recruitment efforts by the employer. The estimated processing time is approximately 45 to 60 days for the PERM petition, and it is taking approximately 4 months to comply with the recruitment and advertising and other pre-filing requirements.

Basic Qualifying Criteria

The business needs of every employer is unique, and therefore the qualifications of its employees will similarly vary. The list below is the general criteria required for a Labor Certification.

1. Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to its regulations;
2. Upon completion of the three step employment based permanent immigration process, the employer must hire the foreign worker as a full time employee;
3. There must be a bona fide job opening available to a U.S. worker;
4. The employer must pay at least the prevailing wage for the occupation in the area of intended employment;
5. The employer must document its job requirements. The job requirements must adhere to what is customarily required for the occupation in the U.S. and it may not be tailored to the foreign national’s qualifications;
6. The employer must document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.

Applying for a New Labor Certification

To apply for a new labor certification under the new system, we must analyze the job title and description, the intended employee’s qualifications and work experience, the prevailing wage, and the proper form of recruitment for the position. After this is complete, the ETA Form 9089, Application for Permanent Employment Certification, may be filed online or by mail-in process.

The filing of the Application for Permanent Employment Certification does not put the foreign worker in lawful immigration status nor does the filing confer employment authorization. In order to employ the foreign worker lawfully before completion of this process, the foreign worker must be in lawful status and must have employment authorization.

Below is a general outline of how the Application for Permanent Employment Certification is filed and what is required for this type of application.

1. Filing Online. The PERM online system for permanent labor certification offers a registration feature for employers only at: www.plc.doleta.gov. You will have to create sub-accounts so we may submit PERM applications on your behalf. The benefits of the PERM Online system is generally as follows:
   • Faster application processing time;
   • Posting, viewing, and updating profile information;
   • Supporting documentation is not submitted with application;
   • Tracking and viewing the status of prepared applications;
   • Electronic verification of PERM status;
   • Reusing case information.

2. Mail-in Filing. National processing Centers have been established in Atlanta and Chicago to process labor certification applications. However, all supporting documentation must be submitted if requested. Our firm policy is to obtain from the client copies of all supporting documentation.

3. Prevailing Wage Determination (“PWD”). The wage of the foreign national must now meet or exceed the prevailing wage as determined by governmental surveys. We must seek a PWD prior to filing the labor certification application from the local State Workforce Agency (“SWA”) and provide them with the proffered wage, occupational code, skill level, and job title. The PWD is valid for one year (depending on the wage source used) from the date of determination and must be paid either from the time permanent residency is granted or from the time the alien is admitted to take up the certified employment. An appeal process for this is available.

4. Pre-filing Recruitment Steps. Two different Sunday advertisements must be placed in a newspaper of general circulation more than 30 but less than 180 days before filing. Additional recruitment is required if the offered position is a professional one.

5. Job Order Placement. A job order must be placed with the SWA (i.e. state agency, which in Indiana is Indiana Workforce Development) for at least 30 days.

Again, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer’s application is selected for (1) audit or (2) the Certifying Officer otherwise requests it. These documents must be retained for five (5) years from the date of filing by the employer. The labor certification process should take approximately four (4) months to complete: 30 days for Sunday ads; 30 days for job order; and 45 to 60 days for the application to be processed by the DOL. However, be advised that these dates are projections by the DOL only.

It also is important to understand that statements and representations made to the government in this process are made under oath with penalties for misrepresentations or false statements.

I-140 Petition and Adjustment of Status Application

After the labor certification is obtained, the second and third steps in the process of obtaining the permanent resident visa can be taken. This involves a visa petition filed by the employer with United States Citizenship and Immigration Services (USCIS) and an application filed by the alien. Recent developments in immigration regulations allow for submitting both the I-140 Immigrant Petition for Alien Worker (to be completed by the employer) and the adjustment of status application (to be completed by the alien) to be filed and processed at the same time.

The I-140, Immigrant Petition for Alien Worker is prepared for submission by the employer on behalf of the alien. It is important at this time to be able to verify that the alien had the education, knowledge and experience listed as "minimum requirements" on the labor certification application prior to employment with the petitioning employer. Degrees, transcripts and employment verification documentation must be submitted with the I-140 petition to verify that the alien has the required education and experience. The employer must also submit financial information to the USCIS with the I-140 petition.

The alien must prepare for filing all documentation required for the adjustment of status application. The alien must submit the medical examination and photographs at this stage of the process. The alien must also submit his or her birth certificate and a copy of his or her passport as well as verification of all nonimmigrant stays in the United States. If the alien is married, then it is also necessary to submit an adjustment application along with the same documentation for any spouse and children who were not born in the United States.

For workers who are not lawfully present in the United States, the final step (after approval of the I-140) takes place at a U. S. Consulate or Embassy in the alien's home country.

At this final step, which is taken as adjustment of status or through consular processing abroad, the U. S. government determines whether the alien is undesirable and thus ineligible to become a lawful permanent resident. Medical examinations and fingerprints are taken, and a series of questions are asked about the alien's background. Problems can arise if the alien has a criminal conviction, has worked illegally in the U. S., has remained in the U. S. without lawful status for longer than 180 days, has contributed money to terrorist supporting organizations, has untreated TB or HIV, and for other reasons.