By: Attorney Michele Strickland
Foreign Nationals may obtain permanent residence through an employer sponsor. Labor Certification through PERM (Program Electronic Review Management system) is the most common way for an employer to sponsor individuals for permanent residence. The process starts with the Department of Labor (DOL) and, once the application is certified, moves on to USCIS for the application for the immigrant visa (green card).
Step One: The Job Description
Drafting the job description and requirements often takes the most time in preparing a strong PERM application. To properly craft a job description, an attorney must review the employer’s minimum job requirements, the foreign worker’s qualifications, work experience letters, and educational documents. Once the job description is finalized it is used throughout the process.
Step Two: Prevailing Wage Determination
First, the job description is sent to the Department of Labor to request a prevailing wage determination. The prevailing wage is set annually by the DOL by geographic region and employer surveys. The DOL determines the prevailing wage for the position by reviewing the education and experience requirements for the position. This step takes 2.5 to 3 months. When the prevailing wage is established it is time to move on to recruitment.
Step Three: Recruitment
In order for the PERM application to be successful the employer must show that there are no U.S. workers (United States citizens or permanent residents) available and qualified for the position. This is done by following DOL prescribed recruitment. For all jobs the mandatory recruitment requires: two Sunday newspaper advertisements; a 30 day job order with the State Workforce agency; and a 10 day internal posting. If it is a professional position at least 3 of the following additional forms of recruitment are required: job fairs; employer’s website; job search website; on campus recruitment; trade or professional organizations; private employment firms; employee referral program; local or ethnic newspapers; or radio or television advertisements. Recruitment runs for 30 days from the placement of the first ad, then there is a 30 day “cooling off” period when the employer reviews all applicants. Unqualified applicants may be eliminated and applicants who appear qualified must be interviewed. The employer works with an attorney to prepare a recruitment report.
At the end of the 30 day cooling off period the Labor Certification Application is prepared by the attorney and reviewed by the employer and foreign national. Once finalized it is submitted electronically to the DOL through PERM. Current processing time for this step is 5-7 months. The DOL will either certify the application or conduct an audit. The audit can add several months to the process.
Step Four: The Green Card
Once the application is certified, the employer then files a Petition for Immigrant Worker with USCIS. In most cases the foreign national may file an application to adjust status to permanent resident (green card) concurrently with the employers’ petition. This step takes over a year. USCIS now requires interviews for all employment based applications. Nationals of some countries fall into an employment based visa backlog and must wait until their priority date is current to file for adjustment of status. These backlogs are 3-10 years.
Due to the complex nature of this lengthy process, it is recommended that you seek the assistance of an experienced business immigration lawyer. An attorney will guide all parties through the process and ensure smooth and efficient processing of the applications