Immigration Reform is not law yet

PERM — The Process From Employee Perspective

What Is the Process of Getting the “Green Card” Through Your Employer?

In order for you to get the “Green Card” through your employer, the law requires that the employer establish that it cannot find US workers to fill the position and that the position be a full-time position. The process therefore begins with the advertisement of the position.

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1. Advertising the position.

All positions require:

  1. That the position be advertised in the Sunday edition of a newspaper of general circulation serving the area where the position is located. Two such ads must be placed at least seven days apart.
  2. One 30-day job order must be placed with the employment agency of the state in which the position is located.

For positions that normally require a minimum of a Bachelor’s degree in the United States, three other forms of Advertising/Recruitment from the following list must also be used:

  1. Job Fairs
  2. Employer’s Web Site
  3. Job Search Web Site (monster.com, etc.)
  4. On-Campus Recruiting
  5. Trade or Professional Organizations
  6. Private Employment Firms
  7. Employee Referral Program with Incentives
  8. Campus Placement Offices
  9. Local and Ethnic Newspapers
  10. Radio and Television

All of these advertising/recruiting steps must take place no earlier than 180 days and no later than 30 days prior to the filing of the PERM Labor Certification.

Most of our clients prefer that our firm handle the placement of the required ads. Others, prefer to do so themselves, and provide us with copies of the ads and postings.

2. Interviewing the applicants

All applications for the position received in response to the advertising for the position must be considered by your employer.

Frequently, most of these applicants will not meet the requirements for the position, and need not be interviewed. Those that do appear to meet the requirements for the position must be contacted and interviewed by your employer.

In order for the process to move forward, your employer must eliminate all applicants for lawful reasons. These reasons can include, but are not limited to:

  1. the applicant does not meet the requirements for the position,
  2. the applicant would require immigration sponsorship in order to legally work in the US,
  3. the applicant was unable to produce verifiable evidence of their education,
  4. the applicant was unable to produce verifiable evidence of their experience,
  5. the applicant requires relocation funds and the employer does not provide relocation funds,
  6. the applicant requires a salary/wage higher that that for the position,
  7. the applicant’s references did not check out, etc.

3. Posting

Your employer is also required to provide notice to the Bargaining Representative, if the position is unionized, or to its other employees, if the position is not unionized, that the labor certification will be filed and to provide them with an opportunity to submit comments to the US Department of Labor.

The notice must be posted in a conspicuous place, normally the place the employer posts its job openings. Also, if the employer posts job openings on an intranet web site, in newsletters, or other media, the employer must post the notice of the filing of the Labor Certification in these media as well.

4. Filing the Application for Permanent Employment Certification (PERM Labor Certification)

Your employer must file the Application for Permanent Employment Certification (PERM Labor Certification), which details the position and its requirements, the qualifications of your employee, and the recruitment steps and results, with the US Department of Labor.

On the form, your Employer is required to make a number of attestations, and must therefore have the necessary documentation to support the attestations. These attestations include that the employer will pay at least the prevailing wage for the position, and that US applicants were rejected for lawful job-related reasons.

Our firm would prepare the forms and would assist in ensuring that the required documentation is available. Your employer is required to retain this documentation for a period of five years from the date of filing of the Labor Certification.

The United States Department of Labor will then process the application. At the end of the lengthy processing period, the Department of Labor will either deny the PERM Lebor Certification, or will “certify” it. Virtually every application filed by our firm has been “certified.”

If the application is audited, the US Department of Labor will request all the documentation to support all statements made on the application. It will provide the Employer with 30 days to respond to its request. It will make a decision sometime after the submittal of the documentation. That decision can be 1) “certification,” 2) a denial, or 3) mandatory supervised recruitment. In the latter case, the employer would be required to readvertise the position, for three consecutive days, one of which must be a Sunday, and to interview all applicants.

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5. Filing the Immigrant Petition for Alien Worker with the US Citizenship and Immigration Service

Once the United States Department of Labor has certified the Application for Permanent Employment Certification (PERM Labor Certification), your employer will file an Immigrant Petition for Alien Worker with the US Citizenship and Immigration Services. This filing must include the “certified” original of the Application for Permanent Employment Certification (PERM Labor Certification), as well as evidence that your employer has, and has had the ability to pay the wage offered on the Application for Permanent Employment Certification (PERM Labor Certification), since the date the Application for Permanent Employment Certification (PERM Labor Certification) was filed.

The law requires that your employer establish its ability to pay by submitting tax returns, audited financial statements, or annual reports for each year beginning with those for the year on which the Application for Permanent Employment Certification (PERM Labor Certification).

The USCIS will look at the net income and expects it to be greater than the salary/wage offered in the Application for Permanent Employment Certification (PERM Labor Certification). If it is not, your employer will be expected to submit additional documentation, which can include the availability of substantial assets, the existence of lines of credit, and/or evidence that it has been paying the salary/wage offered in the Application for Permanent Employment Certification to the foreign worker since the date the Application for Permanent Employment Certification (PERM Labor Certification) was filed.

6. You file an Application to Register Permanent Residence or Adjust Status

You may have several options available to her/him. If your priority date is current, your can file an Application to Register Permanent Residence or Adjust Status together with your employer’s Immigrant Petition for Alien Worker. Otherwise, you will need to wait until the US Citizenship and Immigration Services has approved the Immigrant Petition for Alien Worker and your priority date is current, before filing the Application to Register Permanent Residence or Adjust Status.

Alternatively, you employee can wait until the US Citizenship and Immigration Services has approved the Immigrant Petition for Alien Worker and your priority date is current, and then apply for an immigrant visa abroad.

7. Verify I-9 one last time.

Once US Citizenship and Immigration Services has granted you the “Green Card,” your HR department to verify your I-9 one last time.

What Are the Requirements?

1. The Position Must Be Full-Time

The law requires that the position through which a foreign worker gets a “green card” be a full-time position.

2. There Must Be A Bona Fide Job Opening

Legally, this means that foreign worker cannot have any say in the recruitment process. The US Department of Labor will almost certainly deny any application in which the employer is a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest, or an application in which there is a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators and the foreign worker.

3. The Job Requirements Must Be the Minimum Normal Requirements For The Occupation in the United States

The requirements that are regarded as normal for the occupation are those that the United States Department of Labor has established, through their various studies, are the minimum requirements to be able to perform the duties of the position. The requirements cannot be tailored to the experience and education of the foreign worker. For example, a company cannot require a Ph.D. from a cook simply because that would eliminate US workers, and the foreign worker happens to have a Ph.D.

4. The Salary/Wage Must Be Equal To Or Greater Than The “Prevailing Wage” For The Position

Because the whole process is designed to encourage the hiring of US workers, the law requires that the salary/wage offered must be equal to or greater than the “prevailing wage.” If a range is used, the lower end of the range must be equal to or greater than the “prevailing wage.”

If the position is unionized, the “prevailing wage” is the wage determined by the collective bargaining agreement.

If the position is not unionized, the “prevailing wage” is the mean, or if the mean is not available, the median, of the wages being paid for the position in the area where the position is located.

The United States Department of Labor generally uses a survey they have conducted for immigration purposes. This survey, which has two levels, is available at http://www.flcdatacenter.com/.

Alternatively, an employer can submit alternate surveys. However, the United States Department of Labor has final word on accepting these alternate surveys.

Alternate surveys should be for the position in the area of employment. They must include a large enough sample, usually at least eight different employers, must reflect the actual salaries paid by the participating employers to its workers in the position in question, and must show the mean, or mathematical average of these wages.

5. Neither You Nor Our Firm Can Have Contact With The Job Applicants

Contact between you and the applicants will result in an automatic denial of the petition. Likewise, contact by our office with the applicants will also result in an automatic denial of the petition. Only your employer can contact the applicants that respond to the required ads.

6. Your Employer Must Pay All Costs Associated With the Application for Permanent Employment Certification (PERM Labor Certification)

The US Department of Labor requires that your employer be solely responsible for all the costs of filing the Application for Permanent Employment Certification (PERM Labor Certification). This includes attorney fees and ad costs. Costs for the Immigrant Petition for Alien Worker and for the Application for Adjustment of Status can be paid by either your employer or yourself.

How Long Will the Process Take?

Unfortunately, it is impossible to provide an accurate timeline. The process is a multi-step and multi-form process, with each step and each form having different and constantly varying processing times.

However, as of this time, it is safe to say that the process will take several years.