Employment Based Green Card through Labor Certification
PERM (the acronym for the Program Electronic Review Management System)
Three steps are involved for obtaining the green card through the employer. This three-step
process is as follows:
Step 1: Labor Certification
There is no fast track or slow track as there was under the old system. All labor certification
requests now be filed using the present terminology as PERM.
Under the PERM regulations, state workforce agencies (SWAs) have no involvement in the
permanent labor certification process other than providing a prevailing wage determination
(PWD), and taking job orders.
Employer has to test the U.S. job market to demonstrate that the employer could not identify any minimally qualified U.S. workers willing to accept an open position that is being offered at a wage equal to or more than the prevailing wage for similarly employed workers and that the employment
of the alien worker will have no adverse effect on the wages and working conditions of similarly employed U.S. workers.
If no qualified U.S. worker willing to accept the proffered position is identified, the PERM application can be filed both on line and manually. But the labor department prefers on line filing and manually filed requests take longer time as well.
The job requirements must be those normally required for the occupation and may not exceed the SVP estimate.
If the alien is already hired by the employer, DOL will look at the training and experience, which the alien possessed at the time of hiring, since normally the employer cannot require U.S. applicants to possess training and/or experience beyond what the alien possessed when hired.
Experience gained with affiliates, subsidiaries, overseas entities, etc., can be used, as long as they do not have the same FEIN as the petitioning employer. It is only experience gained with the petitioning employer that cannot be used unless one of the two exceptions mentioned above applies.
Documentation of recruitment efforts, and responses to those efforts, as well as other matters, must be assembled and submitted to DOL should an audit so request.
Once the labor request is certified by the labor department, it is valid for 180 days for moving to the next stage of green card (filing of I-140 petition).
Step 2: Employer’s Financial Ability to Pay (I-140 Petition)
Once the labor is certified by the Department of Labor, the next step is to file the I-140 petition to the USCIS. The purpose is two fold: i) the potential employee meets all the requirements listed on the labor certification, and ii) the employer has the financial capacity to pay the proffered wages to the employee. The employer has to provide the federal tax returns, for large companies, a letter signed by the Financial Controller or annual reports to prove the financial resources. We have seen in our practice many issues coming up at this stage if the conditions listed on the labor certification are not satisfied or the employer does not have the resources to pay the wages listed in the labor certification to the employee. By this time, it should also be decided based on each case whether your case is good for adjustment of status or for processing through the U.S. Consulate in the home country.
Step 3: Application for Permanent Residence (I-485)
This is the last step in the process of obtaining green card or permanent residency. This includes the filing of employee’s I-485 application and it is called “the adjustment of status” processing. This is the phase for filing of advance travel documents and work authorization documents (EAD) for the employee and the family members as well. This is also interesting to know that the adjustment of status application can be filed only when visa number is available and technically it is called that the priority date is current.
The information contained on this site is offered only for general informational and educational propose and does not constitute a legal advice or opinion. All efforts are being made to keep this information current, but it may not be guaranteed that it applies to your specific case, and should not be relied upon or acted without seeking the advice of qualified attorney.
