PERMANENT RESIDENCY THROUGH LABOR CERTIFICATION
The procedure to obtain a green card through labor certification is a multi-stage process, which includes an application to the U.S. Department of Labor (DOL), the filing of a petition for immigrant worker with the U.S Citizenship & Immigration Services (USCIS) and finally, if the applicant is already in the U.S., filing an application to adjust to permanent resident status. If the applicant is outside the U.S., an application for an immigrant visa is filed at a U.S. consulate abroad.
Labor Certification is only required for individuals seeking to obtain immigrant visas on the basis of an offer of permanent employment in the United States under the employment-based second and third preference categories. A “labor certification” is a certification by the U.S. Department of Labor that there are not sufficient U.S. workers able, willing, qualified and available to perform the work at wages that meet or exceed 100% of the prevailing wage for that occupation in the area of intended employment. Also, the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
As of March 28, 2005, all labor certification applications must be filed using the PERM process. PERM is an attestation and audit program under which employers must conduct advertising and recruitment prior to filing the labor certification application. Employers are required to conduct specific mandatory and additional recruitment steps and must agree to pay at least the prevailing wage for the occupation as determined by the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. This prevailing wage must be paid either from the time the permanent residency is granted or from the time the alien is admitted to take up the certified employment.
If no qualified and willing applicants (US citizens or Permanent Residents) are found through the recruitment process, the PERM application can be filed online. In order to file the PERM applications online, the employer must register and establish an account at www.plc.doleta.gov and a sub-account for Berger and Berger to prepare and submit the PERM applications online. The estimated processing time for PERM applications by the DOL is 45 to 90 days.
Prior to filing the application under the PERM program, employers must perform specific recruitment and advertising based on the type of position offered. The DOL classifies occupations as “professional” or “nonprofessional” and each classification has different recruitment requirements. All advertisements must contain the employer’s name, job location and a brief description of the job and direct applicants to send resumes to the employer.
Both professional and nonprofessional positions require the following mandatory recruitment steps: Two Sunday newspaper advertisements in a newspaper of general circulation in the area of intended employment; A 30-day job order with the State Workforce Agency (SWA) serving the area of intended employment, and; Internal Posting of the job opportunity for at least ten consecutive business days, which must contain the salary or salary range.
Professional positions require three out of the 10 listed additional recruitment steps:
(1) Job Fairs;
(2) Employer’s website;
(3) Job search website other that the employer’s;
(4) On-campus recruiting;
(5) Trade or professional organizations;
(6) Private employment firms;
(7) Employee referral programs with incentives;
(8) Campus placement offices;
(9) Local and ethnic newspapers;
(10) Radio or television advertisements.
THE IMMIGRANT PETITION
Once the DOL has approved or “certified” the labor certification application, an immigrant visa petition, Form I-140 (Immigrant Petition for Alien Worker), is filed with the USCIS. The purpose of the visa petition is to prove to the USCIS that the alien meets the particular job requirements listed in the labor certification, (via copies of diplomas and transcripts, and/or letters from previous employers) and that the employer has ability to pay the alien beneficiary’s salary listed on the PERM application. The required evidence to show the employer’s ability to pay, as specified under 8 CFR 204.5(g)(2), includes copies of:
(1) annual reports,
(2) federal tax returns, or
(3) audited financial statements. The employer must submit a copy of at least one of these required documents. For a large, public company this may be accomplished with a published annual report. In a case where the employer employs 100 or more workers, a statement from a financial officer of the organization, which establishes the prospective employer’s ability to pay the proffered wage, may be accepted.
APPLICATION FOR PERMANENT RESIDENCE
Once the immigration petition has been approved and assuming there is no backlog in the visa issuance quota and waiting list, we can file the application for permanent residence. If permanent residence is applied for in the United States, it is called “adjustment of status” processing. If applied for outside the United States, it is called “applying for an immigrant visa”. The result of either is the same: permanent residence. The information and documentation required at this stage from the alien worker includes fingerprints, medical exam, personal and family biographical information, birth and marriage certificates, personal tax returns, copies of prior USCIS activity (e.g. visas, I-94 cards, student I-20 forms, prior approval notices, etc.). The employer must issue a letter reiterating its intention to employ the worker, and it should provide evidence that the alien is being paid at or above the rate listed in the labor certification application.