Employer-Sponsored Immigrants

Immigrant status, or permanent residence in the U.S. (the “green card”), allows an employee to live and work in the U.S. and apply for U.S. citizenship after five years. Employer-sponsored immigrants fall into three categories:

First Preference: Persons with “extraordinary ability” in the sciences, arts education, business, or athletics; outstanding professors and researchers; multinational executives and managers

Second Preference: Advanced degree holders and persons with “exceptional ability” in the sciences, arts or business

Third Preference: Skilled workers in jobs requiring at least two years’ experience; professionals holding at least a bachelor’s degree; unskilled workers in shortage occupations

Labor Certification Procedure (PERM)

Before applying to the Immigration Service, an employer usually must first obtain alien employment certification (labor certification from the Department of Labor (DOL). This is a statement from DOL that there is a shortage of “able, willing and qualified” U.S. citizens or permanent residents for the particular job, and that the employer is paying the prevailing wage for the labor market within commuting distance of the job. Labor certification is not a work permit. Only the Immigration Service has authority to grant work authorization in the U.S.

There are two major routes through the labor certification process:

1. Schedule A Pre-Certification – Certain occupations are pre-certified and do not require an individual determination from DOL. These include physical therapists and registered nurses, and certain outstanding scientists and artists. In these cases, forms are filed directly with the Immigration Service, cutting down on processing time.
2. Labor Certification (PERM) processing under DOL.
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   • Basic Labor Certification Process. PERM is an employer-driven process and the resulting labor certification is a certification that there are no able, willing or qualified U.S. workers to perform the job duties at a minimum level. The attorney’s role is to analyze the position duties and requirements and the applicant’s education and experience, correctly code the occupation and obtain an acceptable determination of the appropriate prevailing wage level at the Employment Development Department (EDD), assist in developing an acceptable recruitment plan to meet DOL guidelines, analyze recruitment progress reports from the employer, assist in preparing a summary of the recruitment process to be retained by the employer in case of a DOL audit, and file and track the application. The employer must demonstrate acceptable recruitment during the 30-180 day period immediately prior to filing. Recruitment must include, at a minimum, placement of an internet job order with the State Employment Service (EDD in California), at least two Sunday newspaper ads, posting in-house, and, for professional jobs, at least three additional recruitment steps such as ad placement on the employer’s website, job fairs, use of private employment agencies or use of other designated recruitment sources. If the employer is required to provide special justification to DOL, for example an appeal regarding the prevailing wage determination, documentation of business necessity for certain special requirements for the position, or if the employee has an ownership interest in the business, additional legal fees will apply calculated on an hourly basis.
   • Optional Process for College or University Teachers. Previously known as Special Handling, PERM cases for college or university teachers allow the employer to select the most qualified applicant. To utilize this optional, alternative process, such PERM petition must be filed within 18 months of the candidate’s selection, and be supported by specific documentation of the competitive recruitment and selection process. Special recruitment procedures require at least one national professional journal advertisement, and specific job-related reasons why the candidate is the most qualified. The following Step Summary is slightly modified for such Optional Process.

Procedure at Citizenship and Immigration Services

After DOL issues a labor certification under PERM, our office prepares and files the employer’s petition on Form I-140 with the Citizenship and Immigration Services (CIS) in Laguna Niguel, California to classify the applicant under one of the three employer-sponsored preference categories. CIS then examines the employee’s qualifications in detail to determine that employee meets all of the job requirements. CIS also is responsible for determining that the employer has the ability to pay the prevailing wage from the date the PERM application is filed until final approval of the case by CIS.

If a visa number is available in the second or third preference category (see above), this visa petition may now be filed simultaneously with Form I-485, and the alien employee’s immediate family members can simultaneously file their own applications for permanent residence. The applications include a medical exam, and requests for work authorization and permission to travel outside the U.S. if required. From time to time, especially for certain countries such as the Philippines, China and India, visa numbers may not be immediately available in the applicant’s category, and they cannot apply for permanent residence until numbers become available for their priority date. Sometimes a personal interview at the local CIS office may be required. With certain exceptions, persons who have been “out of status” may be ineligible to apply for permanent residence in the U.S. and may be required to return to their home country to apply.

Summary of All Steps in Case

Processing times at the three government agencies involved in the labor certification process (EDD, DOL and CIS) vary from month to month and often depend on the workload of the officer assigned. Estimated time frames made at the beginning of the process are not reliable, due to agency staffing and changes in procedures. UNLESS YOU HAVE ONGOING RECRUITMENT FOR THE SPECIFIC POSITION, PLEASE DO NOT PLACE ADVERTISEMENTS UNTIL OUR OFFICE HAS PROVIDED A DRAFT AD THAT MEETS ALL DOL REQUIREMENTS (STEP 4 BELOW). Following are the steps to be taken in a PERM labor certification case through adjustment of status:

1. Employer and applicant complete all required law office online questionnaires and provide all required documents to attorney with signed retainer agreement and initial payment;
2. Attorney analyzes applicant’s qualifications and position duties, determines appropriate job code, and prepares draft job description for approval by employer; prepares justification of business necessity for special requirements;*
3. Attorney files request for prevailing wage determination from State Employment Service (EDD); appeals determination when required*
4. Attorney analyzes employer’s financial information to determine ability to pay prevailing wage; instructs employer regarding registration with DOL;
5. Attorney provides detailed guidelines for recruitment, evaluates employer’s proposed recruitment plan, provides draft advertisement to meet DOL requirements, and sets timeline for filing based on placement of first ad;
6. Employer places internet job order (minimum 60 days), newspaper advertising and additional required advertisements and posting (60 to 180 days); 30 day progress reports to attorney;
7. Employer prepares spreadsheet summary of applications received and recruitment results with input from attorney;
8. Attorney files PERM application filed online, establishing employee’s priority date for immigrant visa processing;
9. Assessment by DOL and issuance of labor certification to employer. (If case is denied, a request for review or reconsideration may be filed within 30 days)*
10. Preparation of I-140 Visa Petition with Citizenship and Immigration Services (CIS) with evidence of employer’s continuing ability to pay stated wage; determination of whether applicant is to adjust status in the U.S. or apply at a U.S. Consulate abroad.
11. Preparation and filing of Adjustment of Status (I-485) forms with CIS for applicant and all family members, including request for Employment Authorization Document (EAD), granted in one-year increments. (If applicant is to apply at a consulate abroad, CIS forwards approved I-140 petition to the National Visa Center, which sends it to the appropriate Consulate.) If a visa number is immediately available for applicant’s priority date, Steps 10 and 11 may be combined and Forms I-140 and I-485 may be filed concurrently.
12. Review by CIS, including notice to applicant for fingerprinting and possible forwarding to local CIS office for personal interview* followed by approval and processing for permanent residence card.

*Additional legal fees apply, at attorney’s hourly rate

Conclusion

During this process, questions frequently arise on the structure of the job offer, timing of renewal of temporary visa and permits, foreign travel, family immigration, promotions and changes in employment, and other issues. There are also very frequent changes in regulations and legal standards. We offer expert, accessible and up-to-date legal advice throughout the process.