Labor Certification (PERM) Green Cards

Employment-Based (“EB”) immigration to the United States, in contrast to Family-Based or FB, falls into five (5) Preference categories.  These are commonly referred to as EB-1, EB-2, EB-3, EB-4, and EB-5.  EB-5 is for investors, EB-4 is for special immigrants, and EB-1 is for extraordinary ability aliens, outstanding researchers and multinational managers.

Most foreign nationals seeking green cards in the United States based on employment, fall into the EB-2 or EB-3 categories, based on a Labor Certification Application (aka “PERM”).

This article helps both employers and employees by providing a detailed explanation of the PERM-based green card process, which is typically a three (3) stage process:

Stage 1. Labor Certification Application, aka LC, Labor Cert, or PERM – to the Department of Labor (DOL).

Stage 2. I-140 Petition for Immigrant Worker – to the Immigration Service (USCIS).

Stage 3. Clearance for US lawful permanent residence, ie, the green card, by “adjustment of status on US soil” or “immigrant visa processing at a US consulate.”

The PERM is essentially a good faith labor market test for qualified, willing and able American workers – instead of the foreign national, qualified and available for the job.  The PERM application itself is submitted electronically to the U.S. Department of Labor, whose purpose is to protect American workers.

After testing the market, if there is no such worker, then the foreign national proceeds with the stages of the process.  If a qualified and available U.S. worker is found, the green card process stops.  Yet, the employer is not required to hire the U.S. worker who might turn up during recruitment. It just signals that the market contains qualified U.S. workers who should be offered the job first. It does not prevent trying for the green card for the foreign national again.

TIMING

The length of the process varies primarily based the EB category (1-5) and the applicant’s country of birth.  The United States sets a per-country limit on the number of green card applications accepted every year, from either inside the U.S. or from abroad.  In other words, the U.S. controls how many green card applications it accepts every year, from different nationalities, in different EB categories.

Per-country supply and demand in the different EB categories impacts how long someone has to wait for a green card.  For example, the greatest demand for green cards are in the EB-2 and EB-3 categories, for workers with advanced degrees or professional or skilled workers respectively, from applicants born in India or China.  As a result, these applicants have to wait the longest for green cards.

In contrast, EB-1 category applicants from any country, or EB-2 and EB-3 category applicants from countries other than India or China, are on a significantly faster track to permanent resident (green card) status.

For the longer-track applicants, they might complete Stage 1 and Stage 2 of the green card process; then have to wait for Stage 3, possibly years or decades.  The person’s place is line is set by their priority date, which for EB-2 or EB-3 PERM based green card cases, is established on the date of filing the PERM (Labor Certification Application).

The priority date will either be considered “current” or “subject to visa retrogression.” When it is current, the person is eligible to proceed to Stage 3 of the green card process. As long as it is “retrogressed,” the person is essentially waiting for the green card, and usually maintaining nonimmigrant working status in the U.S.

Notably, there are limits to H-1B status in the United States, but current immigration law (AC-21, the American Competitiveness in the 21st Century Act) provides that for certain employment-based green card applicants, who have reached certain milestones in the green card process, are eligible to extend H-1B status beyond the maximum six (6) years.

The U.S. State Department Visa Bulletin has a CHART showing Employment-Based Priority Dates which are current and which are backlogged here:

https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

ARE YOU EB-2 OR EB-3?

EB-2 allows people with advanced degrees – defined as a master’s degree OR a bachelor’s degree plus five years of progressive post-baccalaureate experience – to apply for a green card.  EB-3 allows people with a bachelor’s degree or skilled workers holding less than a bachelor’s degree, to apply for a green card.

But the person’s qualifications are only half the equation.  The minimum requirements for the position offered represent the other half.  For example, a person could have a PhD, but if the position offered doesn’t require at least an advanced degree or equivalent, the EB-2 does not work.  Same for the EB-3, someone might have a bachelor’s degree, but employer might not require one for the position.

STAGES 1-3

Stage 1. Labor Certification Application, aka LC, Labor Cert, or PERM – to the Department of Labor (DOL).

In general, the point of this stage is to test the U.S. labor market to see if there are any qualified U.S. citizens or green card holders for the job offered. In most cases, the job offered is also the job the foreign national employee currently holds. .

Our firm reviews all the company and position information, as well as the employee’s credentials gained prior-to joining the company, to develop case strategy.

We analyze the following:

(a) the current job description;

(b) the job title/description that describes what the employee will be doing when cleared through this entire green card process;

(c) the person’s actual credentials;

(d) the U.S. Department of Labor description of their closest-matching position; and

(e) the prevailing wage for the job in this geographic market: we check/clear your actual salary against DOL’s prevailing wage for similar positions.

The law only allows us to use experience gained PRIOR to the sponsoring employer. Yet, of course, often the employer sponsors the foreign employee for U.S. permanent residence precisely because s/he holds important skills gained on the job.

This can be problematic. Experience gained with the sponsoring U.S. employer is difficult to use. However, it should not be disregarded as the best and true strategy. We might be able to use the employee’s experience with the company, acquired in clearly different occupations.

Recruitment

We work with the employer to make sure they are conducting a good faith labor market test, which includes helping them streamline the advertising process.  If the employer has recruited for this position in the last 6 months, or a similar position, the employer should let us know immediately.

Candidates who turn up during recruitment are eliminated if they don’t qualify for the minimum requirements of the job. Those that seem to qualify must be interviewed. The Employer works with us by keeping incoming resumes in a manila folder and reviews them according to a schedule so that potentially qualified applicants are called back within a reasonable time. We explain this process in detail as we go through it.

Timing

The initial preparation and recruitment takes about three to four months, before filing with the local DOL office.  The Labor Certification will be pending with DOL for anywhere from 3 months to 18 months (or more if the application is audited).

Audits are not unusual and may be expected in many cases where we exceed DOL’s pre-crafted education/experience for a given job.  An Audit is also assured when a language requirement exists.  An audit also happens in cases where DOL wants to review resumes of U.S. workers submitted to the Employer in response to the recruitment for the position offered.  A PERM Audit involves multiple hours of work for attorneys and staff, and takes extra company involvement.

Ongoing Employment Issue

Notably, this process creates a special bond between the employer and the employee, because this type of green card depends strictly on an ongoing offer of employment. 

For people already employed with the sponsoring employer:  At the time we start the process and move into Stage 3, the employer and the employee must intend that the employee will work for the employer once the process is completed, aka, “upon issuance of the green card.”  This “intent to employ” must continue when we file Stage 3.

Yet, after filing Stage 3, at a certain point, the employee may be eligible to leave and work for another employer (pursuant to a law known as AC-21) and complete the green card process somewhere else.  Minimally, the employee’s next employ must be in the “same or similar occupation” compared to the position offered with the original employer AND provided the I-140 (Stage 2) is already approved.

For people who will be employed with the sponsoring employer only after approval of the green card:  The employer and employee must intend that the employee will work for the employer, once the green card is approved, aka, “upon issuance of the green card.” This intent to employ is proved by hiring the employee once he or she obtains the green card. Until that point, the employee may work for other employer(s), inside or outside of the United States.

No matter what happens along the way, or what the company’s reason is for sponsorship, or what the foreign national’s reason is for wanting a green card – bona fide intent is required from both parties.  Specifically, the sponsoring employer must want the employee to work for the employer, once a green card is obtained; and the employee must want to work for the sponsoring employer, once a green card is obtained.

Stage 2. I-140 Petition for Immigrant Worker – to the Immigration Service (USCIS).

At this stage, the Labor Certification Application has been approved by the U.S. Department of Labor and then to keep the process going, the company must file an I-140 Petition for Immigrant Worker – which is based on a certified Labor Certification Application.  The I-140 notifies the U.S. Citizenship and Immigration Service (“USCIS”) that:

(a) DOL agrees that the job opening exists;

(b) the employee noted is the qualified applicant;

(c) the company is financially viable to pay the employee the pre-chosen prevailing wage for the job in the geographic market, as agreed on the Labor Certification Application; and

(d) the company has a bona fide job opening and need for the sponsored position.

The Employer has to review forms, sign and provide company information and financials. With regular processing, it might take 4-10 months for USCIS to respond to the I-140, typically with an approval, or Request for Evidence (RFE).  Premium processing has historically been available for EB-2 and EB-3 I-140 petitions, which cuts down the initial response time to 15 days.

An RFE occurs after initial submission, if the USCIS adjudicating officer determines that additional information or documents are needed to determine eligibility for the requested benefit.  RFEs are issued at the discretion of USCIS adjudicating officers, whose training, experience and disposition varies – which means that even if the initial submission should have been sufficient, an RFE might still happen.

Stage 3. Clearance for US lawful permanent residence, ie, the green card, by “adjustment of status on US soil” or “immigrant visa processing at a US consulate.”

This stage includes the final green card clearance paperwork for the employee and his or her family. At this stage, all biographical, criminal and medical data must be submitted to U.S. immigration authorities, to be sure that the person is not excludable from the U.S. for medical, criminal or other reasons.

We will work with the employee to gather information, complete the necessary forms and have the medical data processed. There are two ways to clear for the green card:

  • Adjustment of Status on US soil (Form I-485 Application for Adjustment of Status to Lawful Permanent Resident);
  • Immigrant Visa Processing outside of the US (executed at a U.S. Embassy or Consulate overseas)

Adjustment of Status (AOS)

Most clients file “Adjustment of Status” on US soil, once the Employee’s Priority Date becomes current, based on the U.S. Department of State’s Visa Bulletin. We file the Form I-485 with the Form I-765 for interim employment authorization, and the Form I-131 for interim travel permission (only if there were no status problems leading up to this point).

Immigrant Visa Processing (IVP)

Alternately, a client may consular process for the green card called Immigrant Visa Processing or IVP.  IVP is started when the Priority Date becomes current.  Immigration strategy could dictate that the employee should use the IVP route to the green card, instead of adjusting status on U.S. soil by filing with USCIS.  This option is better in a few situations, for example, for overseas transfers that took place during the process, for certain Canadians, or for employees who had problems maintaining temporary work status on their visa over the years. It depends on specific facts of the case.

Spouses

The foreign spouse files for final green card clearance with the principal sponsored employee at this stage.  To obtain a green card for your spouse without hardship of separation, you must be married before the green card is approved.

Post-Stage 3.  Possible Additional Filings:  EAD and AP Extensions 

Only for subsequent years, if there are delays in green card processing.  The EAD (Employment Authorization Document or Employment Authorization Card, which is interim work authorization) and the AP (Advance Parole, which is interim travel permission) that are filed in Stage 3, are only valid for one year at a time.

Since the processing of the green card may take longer than one year, a person may have to extend the EAD and AP documents of all eligible family members.  It is important to monitor EAD and AP expiry dates and file I-765 and I-131 applications in advance to avoid gaps in employment authorization or getting stuck outside of the United States.

NOTE: As of January 17, 2017, new rules went into effect, which automatically extend EAD validity for employment based applicants, based on a timely renewal application filing.

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If you are interested in PERM based green cards and have questions please don’t hesitate to contact me at 1-415-215-6883, or Michael@ryvinlaw.com.

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