The following information was generously provided by our partner law firm Miller Canfield.
Following is a general outline of the employment-based permanent resident (“PERM”) process when labor certification is a prerequisite to obtain a US green card. The labor certification process is completed to ensure that there are no US workers qualified and available for the position offered, and that the employment of the foreign national will not adversely affect the salary wages or working conditions of similarly employed US workers.
There are three steps in this process. The first step is completing the labor certification application (“PERM”) process. The second step is the filing and approval of the Form I-140, Immigrant Petition for Alien Worker, and the third step (which is usually decided by the employee) can either be completing adjustment of status, or consular processing. This memorandum will discuss each step of the process.
PERM Labor Certification
As indicated above, the first step to be completed is the PERM labor certification process. This process will seem a little odd because the employee may already hold the position, and the employer will be recruiting for a position that is technically already filled. However, the US Department of Labor (DOL) requires that the employer test the US labor market to ensure that there are no US workers willing, able or qualified to fill the position. The company must demonstrate that it has made a good-faith effort at trying to recruit for the position.
The PERM process requires that a recruitment period be completed prior to filing the labor certification application. There are specified recruitment steps that need to be completed, and they are:
1. The employer must place two advertisements on two different Sundays in a newspaper of general circulation that covers the area of intended employment. The ads may be placed on consecutive Sundays. The wording of the ad must comply with DOL requirements.
2. The employer must place a job order with the State Workforce Agency (SWA) for a period of 30 days.
3. The employer must use any and all in-house media, whether electronic or printed, in accordance with its normal procedures used for recruitment for similar positions in the organization. (For example, if the company normally posts open positions on a company intranet, then the position must also be posted.)
4. The employer must post a notice of the job opportunity for at least ten consecutive business days at the place of intended employment.
5. The employer must complete THREE different additional recruitment steps, if the position is professional in nature. The employer may choose from three of the following: a) job fairs; b) employer’s website (world wide web, not company intranet); c) job search website other than the employer’s; d) on-campus recruitment; e) trade or professional organizations; f) an employee referral program, if it includes identifiable incentives; g) a notice of the job opening at a campus placement office, but only if the job requires a degree and no experience; h) local and ethnic newspapers, to the extent that they are appropriate for the job opportunity; i) radio or television advertisements; and j) private employment/recruitment firms.
Your immigration attorney will assist the employer with preparing a recruitment schedule and setting up much of the recruitment effort. The employer must remember to keep detailed records of the recruitment effort, and all recruitment must be documented. For example, the employer needs to keep the original newspaper ads, and should print out copies of any on-line advertisement as it is running during the recruitment period (the printout should have a date on it). If the employer uses a private recruitment firm, a copy of the contract for services should be maintained.
If an applicant(s) appears to meet the minimum requirements, the company will have to contact that applicant to arrange for an interview either via telephone or in-person. An employer may only reject an applicant if there is a lawful, job-related reason.
Please note that if the position listed on the labor certification is the same position that the employer will be using for the labor certification application, then the foreign national must remain in that position for the duration of the green card process. (It is possible to put a prospective position on the labor certification, although most employers use the position that the employee currently holds.) There may be a situation toward the end of the green card process that would allow for the foreign national to change positions, however, for the initial two steps and most of the way into the third step, the foreign national must remain in the same position.
When completing Form ETA 9089 (the labor certification application), it must list the position offered, as well as the minimum educational and experience requirements for the position, on the labor certification. The employer should keep in mind that the requirements listed on the labor certification must be the minimum required to hold the position offered, and not the minimum qualifications that the foreign national has for the position offered.
Also, when at all possible, an employer should avoid requiring experience gained while working for that employer. The US Department of Labor (DOL) views this type of requirement as unduly restrictive. (Unduly restrictive is defined as requirements that demand skills, knowledge, abilities and conditions of employment which are not normally required to satisfactorily perform work in the occupation.) Other types of restrictive requirements may include foreign language proficiency, certain combinations of job duties, and skills that are not obtainable in the US. If an employer must require an unduly restrictive requirement, the employer may have to provide a business necessity letter to the DOL to convince them that the requirement is essential to the position. A labor certification that has requirements that are unduly restrictive may take longer to process than a standard labor certification.
An employer must keep in mind that the position listed on the labor certification is specific to the job and a geographic location. Any significant changes in the position or the geographic location will require the employer to begin the process, again, from the beginning.
Once the recruitment period has ended, Form ETA 9089 is completed and submitted on-line to the DOL. The employer is then responsible for maintaining the various recruitment information, a recruitment results report, and a copy of the filed Form ETA 9089 for a period of five (5) years. The Form ETA 9089 is currently taking approximately 4 to 9 months to be processed (unless an audit notification is issued by the DOL).
Once the PERM application has been certified, we will prepare and file Form I-140, Immigrant Petition for Alien Worker and the required supporting documentation with the US Citizenship & Immigration Service (USCIS). One of the supporting documents to be included in the package will be evidence of the financial ability of the company to pay the offered wage as of the date of the filing of the labor certification application. Therefore, the company will either have to submit copies of financial statements, a company annual report or a letter from the Chief Financial Officer to establish the viability of the company. Currently, the Form I-140 is taking approximately 4 to 6 months to be adjudicated.
Adjustment of Status or Consular Processing
Once the Form I-140 has been approved, the employee will either have to complete the adjustment of status process, or complete consular processing, to obtain his/her actual green card. Adjustment of status is a process that is completed within the US, and is the final step in obtaining US permanent residency, or a green card. The adjustment of status process is currently taking approximately 6 months to complete.
Consular Processing is another method utilized as the last step in the green card process. Consular Processing requires a set of documents (that differs from the adjustment documents) to be completed and submitted to a US embassy or consulate abroad. You and your family would then be required to travel to that US embassy or consulate abroad to attend an immigrant visa interview. Once you have obtained an immigrant visa stamp in your passport, you would enter the US and be processed for your physical green card at the point of entry. Consular processing times vary depending on the embassy or consulate. However, in general, consular processing may take at least 6 months to complete.
If the employee is subject to the current backlogs within the employment-based green card process, then s/he may have to wait to file either the adjustment of status application or complete consular processing (see Visa Retrogression below).
As you may know, there is currently visa retrogression in many preference categories within the employment-based visa (green card) process. This basically means that there are more individuals who want to obtain a green card, than the US government is eligible to issue each year. Therefore, a backlog of employment-based green card cases has occurred, and the USCIS can now only adjudicate green cards for employment-based cases based on the priority date for the individual. (For your reference, the priority date is normally the date that the original labor certification was filed with the US Department of Labor.) We will notify you if your employee is subject to visa retrogression and exactly what that means for the employment-based green card process.
H-1B Maximum Stay
For your reference, this entire green card process may take many years to complete if visa retrogression remains. This means that an H-1B visa holder may reach his/her six year maximum before the green card process is complete. However, Congress has implemented a law that allows certain individuals who hold H-1B status to extend their status in one year or three year increments past their 6 year limit. In order to take advantage of this law for the one year extension, the labor certification will have to be pending at least 365 days prior to the expiration of the six year maximum stay in the US. In general, in order to take advantage of this law for the three year extension, the Form I-140 must be approved and the employee must be subject to visa retrogression.
If your employee holds L-1B status, and will be completing the PERM process, we will probably recommend that, at some point, s/he change status to an H-1B nonimmigrant, if possible, so that s/he may be able to take advantage of the additional nonimmigrant time indicated in the above paragraph.
This is a general outline of the employment-based green card process when PERM labor certification is required. Should you have any questions, please contact your immigration attorney.
*Disclaimer: The information contained on this page is not to be construed as legal advice. Legal questions should be directed to a qualified immigration attorney.