An employer may sponsor a potential foreign worker for a labor certification and immigrant petition to obtain legal permanent residence in the United States for Employment-Based 2nd and 3rd Preference categories.
I. Department of Labor (DOL) PERM Labor Certification Process
First, an employer must apply for labor certification from the Department of Labor (DOL) through the PERM (“Permanent Electronic Review Management”) process. The employer must have a job offer which includes a job title, job description, minimum requirements, and salary which meets the Department of Labor’s prevailing wage requirements. The employer must request a prevailing wage determination (PWD) from the DOL prior to beginning the required recruitment advertising. Once the PWD has been issued by the DOL, the employer will complete an extensive recruitment process to fill the position and show that there are no U.S. workers qualified to fill the open position.
The recruitment requirements are:
1) 30 day job order with the relevant State Workforce Agency
2) 2 Sunday Print ads in a newspaper of general circulation
3) Internal posting notice for 10 consecutive business days
4) For Professional Positions Only: 3 additional forms of recruitment
If there are applicants who possess the minimum requirements for the job, the employer must interview the candidates and prepare a recruitment report, documenting the recruitment activity. If the employer rejects a candidate, the report must be documented with a lawful and job-related reason for the rejection.
Once the recruitment process is completed, the employer must then file an application ETA Form 9089 with the DOL and show that the employment will not adversely affect the wages and working conditions of U.S. workers. The employer must keep all documents related to the PERM application for a minimum of five years. Please click here for the official website of the U.S. Department of Labor describing in detail, the Permanent Labor Certification process.
II. USCIS, I-140 Petition
Once the DOL has certified the labor condition application, the second step is to file an I-140 immigrant visa petition with the USCIS. At this point, the employer must prove that it has the financial ability to support the wage for the position as indicated in the labor certification application. Financial ability is proved by submission of at least one the following three USCIS required documents: 1) Corporate Tax Returns 2) Audited Financial Statements or 3) Annual Reports. The employer may also submit other relevant documents demonstrating financial ability to pay the wage, but must include one of the aforementioned documents. The foreign beneficiary’s qualifications are also checked at this stage to make sure that the beneficiary meets the minimum job requirements.
III. USCIS, I-485/I-765/I-131
The USCIS accepts I-140 and I-485 concurrent filings. However, we only recommend concurrent filing in certain situations. For most cases, once the I-140 petition is approved, then I-485 Application to adjust status is be filed by the beneficiary of the petition and any derivative family members. Currently due to backlog of employment based petitions, especially EB3 cases, many applicants cannot file the I-485 application until their priority date is current. The priority date is the date that the original Labor Certification application was filed with the DOL.
The PERM Labor Certification & Immigrant Petition processes are both complex, requiring the employer’s active involvement by complying with all the statutory requirements. The process also requires the employer to be open about their business and financial records as requested by the DOL and USCIS.
Our office has had great success in obtaining approvals for labor certification and immigrant petitions, and we can assist you in making this process as smooth as possible.
IMIN LAW Employment & Family Based Immigration