Employment-based Permanent Residence (Part 1)

Green card application through employment is a promising and popular option for someone who does not have any family member who is U.S. Citizen or Permanent resident. As its name stands for, you need an employer who is willing to sponsor your green card. With a few exceptions, permanent residency through employment is granted when the employer can show that the employer was not able to find candidates who are qualified and willing to work in the position.

As employers need to report this to the Department of Labor (“DOL”) for green card sponsorship through an application for labor certificate which is often called “PERM” (Program Electronic Review Management) application (ETA Form 9089). In this series of articles on the EB (Employment-based) PERM cases, I am going to provide basic information about the process through three articles on 1) DOL process; 2) USCIS Form I-140; and 3) Green card application. As the first of these, this article briefly explains the process to be done before submitting petitions and applications with USCIS.

Step 1: Prevailing wage determination

Through this very first step of EB PERM cases, the employer requests DOL to determine “prevailing wage” for the position it is planning to sponsor for, by providing details of the position, job duties, location, and requirements, etc. When determined after several months of review by DOL, the prevailing wage amount would function as a kind of minimum wage specifically for the position. Employers should offer wages which are the same as above the determined prevailing wage amount.

Step 2: PERM Recruitment

After the prevailing wage amount is determined, employers should recruit employees for the positions they are planning to sponsor for the future employee’s green card. This process is often called “testing the market” because employers can move on to the next step only after they test the market whether there is any U.S. Citizen or permanent resident workers who is qualified and willing to work for the employer in the position.

Please be reminded that permanent residency is granted to foreign nationals on the condition that employers could not find employees to fill the positions.

This “PERM” recruitment is different from regular recruitment in that regulations require specific methods of recruitment and mandates what needs to be in the advertisements.

One of the differences is its timing. PERM recruitment ads are required to include offered wage amount which is the same or above the prevailing wage determined specifically for the position. Many employers share that they have run numerous job ads for a long period of time and whether they can use the past or current advertisements for PERM purposes.

Most of the time, unfortunately, the answer is “can’t” because the regular recruitment activities can hardly qualify as PERM recruitment considering complex requirements for the Ads immigration regulation regulations mandate.

Another big difference between the PERM recruitment and regular recruitment would be employers’ responses to the candidates. Unlike regular recruitment, PERM employer sponsors should contact and offer an interview to every single candidate who seems to satisfy the announced requirements for the position.

After the interview, PERM sponsors can refuse candidates only for job-related reasons. Employers cannot reject candidates who are qualified and willing to work in the position only because they do not like them, which is not a job-related reason. It does not mean that the PERM sponsoring employers must hire everyone who satisfies the minimum requirements.

Both in PERM recruitment and regular recruitment, whether they offer the job to the candidate is up to the employer’s sole determination. But, when PERM sponsors reject a candidate for the reason that is not job-related, then the sponsors may not move forward for green card sponsorship.

Step 3. PERM application

Only after confirming that PERM sponsors did not find any employee who is qualified and willing to work, can the sponsors file PERM application with DOL. This is the last process of employment-based green card sponsorship/application with DOL. After this stage, you will work with USCIS.

Through the PERM application, sponsors provide detailed information of the position, recruitment activities, and the employees they are sponsoring for. So, this application is employee-specific, and cannot be used for multiple future employees. And this is when the employee’s application for permanent residency is shared with the U.S. government.

Adjudication of PERM application takes even longer time than the prevailing wage determination. The processing time may become even longer when an audit is requested. This audit is basically random and any case can be selected for an audit for no reason. In addition, some cases might trigger an audit for reasons including requiring a specific foreign language, family or ownership relationship between the sponsor and the beneficiary, and any information incorrectly provided in the application form.

After the PERM is certified by DOL officers, the process with DOL ends and PERM sponsoring employers can submit the Form I-140 petition with USCIS. I will cover this stage in the next article.


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