Permanent Residence Via PERM Labor Certification

Permanent Residence Via “PERM” Labor Certification

Summary

Permanent Resident Status acquired through an offer of employment is often an employer-driven or employer-sponsored process. With a few exceptions, such as applications involving persons of extraordinary ability, outstanding professors and researchers, multinational executives and managers, persons in the national interest, physical therapists and registered nurses, obtaining a Labor Certification is a necessary first step. A Labor Certification is issued by the U.S. Labor Department to an employer upon proof that the employer has tested the labor market and has established that no qualified, willing, and able U.S. workers are available for the position in question.

The entire application process involves three stages and two to three governmental agencies. The precise length of time that the application may require is difficult to determine and is heavily influenced by the processing times and delays at the various governmental agencies and by the presence or absence of a waiting list in the Visa category in which the applicant eventually will apply for his or her permanent resident Visa (or “Green Card”).

First Stage: PERM Labor Certification

The employer initiates the process by undertaking a series of recruiting steps to test the relevant labor market. The purpose of the labor market test is to determine whether any “U.S. workers” are available and qualified to fill the position. Recruiting steps include a job order placed with the state workforce agency for at least 30 days, two newspaper advertisements published in the appropriate general circulation newspaper, and an internal posted notice. For professional positions, an employer must use at least 3 additional recruiting avenues. The additional recruiting steps may include any 3 of the following: (a) Job Fairs; (b) Employer’s Website; (c) Job Search Website Other than the Employer’s; (d) On-campus Recruiting; (e) Trade or Professional Organizations; (f) Private Employment Firms; (g) Employee Referral Programs with Incentives; (h) Campus Placement Offices; (i) Local and Ethnic Newspapers; or (j) Radio and Television Advertisements.

Within six months of completing the required recruiting steps, the employer files its PERM Labor Certification Application, preferably by completing and submitting its application directly to the U.S. Department of Labor via DOL’s dedicated website.

The DOL may: (a) approve the application (the DOL says it will do so in 60 days); (b) request documentation from the employer to support the employer’s application; or (c) require the employer to conduct further recruitment.

Second Stage: Visa Petition

With the labor certification in hand, the employer next files an Immigrant Visa (or preference) petition with the U.S. Citizenship and Immigration Services (CIS). The petition is the employer's request that the CIS: (i) find the foreign national qualified for the job offered and (ii) place the foreign national into one of two visa categories. Although there are several employment-based visa categories in which workers may qualify, the second and third employment-based preferences (described below) are used in labor certification cases:

EB-2 Professionals with Advanced Degrees and Persons with Exceptional Ability in the sciences, arts, or business; and
EB-3 Skilled Workers, Professionals with Basic Bachelor's Degrees, and Other (Unskilled) Workers.

Third Stage: Permanent Residence Application

The foreign national may apply for adjustment of status at a CIS office in the U.S. or for an Immigrant Visa at a U.S. Consulate abroad (usually in the foreign national’s home country). An adjustment of Status Application may be filed concurrently with an Immigrant Visa petition (stages two and three may be combined into a single filing). Alternatively, the foreign national may opt for consular processing – which results in an interview with the U.S. Consulate in the person’s home country after CIS has decided the Immigrant Petition (stage two).

Caveat

Keep in mind that this proceeding does not necessarily authorize the employer to employ the foreign national – nor does it generally permit the foreign national to remain in the U.S. – while the labor certification stage is under consideration. Permission to remain in the U.S. and to work occurs after the Immigrant Petition (stage two) and Adjustment of Status Application (stage three) have been filed with CIS. Of course, there are temporary visa categories that might permit the employer to employ the foreign national while the employer sponsors the foreign national for Permanent Resident Status.