The process for obtaining permanent residence is based on an offer of employment and is comprised of three phases: labor certification, visa petition, and the application for permanent residence. The purpose of this memorandum is to explain the three phases and to provide you with information regarding the company’s involvement in each of these phases. If you have any questions in regard to any of this information, please do not hesitate to contact our office.
The first step involved in the process of sponsoring an employee for legal permanent residence is to obtain labor certification from the Department of Labor. A labor certification is a certification made by the United States Department of Labor that there is a shortage of qualified U.S. workers for the position being offered to the sponsored alien employee. The labor certification is valid only as long as terms remain unchanged; that is, the job offer remains the same. Based on the information we obtain from you, our office will draft the documentation necessary for this process.
The sponsoring company will need to undertake several forms of recruitment during the six months prior to filing your application for labor certification. For a professional position, there are four mandatory requirements. The company’s efforts must include:
- Two Sunday advertisements placed in a major newspaper in the area of intended employment;
- Notice of Filing of the job opportunity on the company premises for 10 consecutive business days: Must contain offered wage equal to or higher than the prevailing wage;
- Placing a job order with the State Workforce Commission for 30 days (we will do the necessary paperwork to accomplish this step); and
- Obtaining a prevailing wage determination from the DOL (we will do the necessary paperwork to accomplish this step).
In addition, the sponsoring company must undertake at least three additional recruitment efforts (choose 3 of the following:
- Participating in a job fair;
- Posting the position on the employer’s website
- Use of a job search website other than the employer’s;
- On-campus recruiting;
- Recruitment through trade or professional organizations;
- Use of private employment firms;
- Use of an employee referral program with incentives;
- Posting notice of the job opening at a campus placement office;
- Advertisement in local and ethnic newspapers; or
- Radio and television advertisements.
The sponsoring employer should be able to demonstrate that qualified U.S. applicants are in short supply. This is done through a recruitment report prepared prior to filing the labor certification application. This report will detail the recruitment steps taken, the number of applications received for the offered position, lawful, job-related reasons why those applicants were rejected, and supporting documentation. Our office prepares the recruitment report with the help of the sponsoring company’s Human Resources department.
Once all of these steps are accomplished, we will then electronically file the labor certification. The expected processing time for electronically filed applications under PERM is 6 – 8 months. The application may be subject to an audit, which can increase the expected processing time.
Please note that applying for a labor certification does not bind the employer legally. The employer remains free to dismiss you or to take other personnel action with regard to you, as it would with regard to any other employee. Also, the employer may withdraw the labor certification application at any time.
On the other hand, the application does not bind you to the employer either. However, it is important, before expending great amounts of time and effort that you are sure that there is relative job stability and that you will be remaining with your employer at least until the whole process has been completed. We will identify any problems up front. Common problems/issues include those related to the prevailing wage, experience gained on the job, education level required, and any special requirements as to the position. We will work with you to resolve any problems at an early stage in the process.
The Visa Petition I-140:
Upon receiving an approved labor certification, our office prepares a visa petition to be submitted to the U.S. Citizenship and Immigration Services. The purpose of the visa petition is to prove to the Immigration Service that: (1) your job has been certified by the Department of Labor, (2) you meet all of the requirements listed on the labor certification, and (3) the sponsoring company has sufficient resources to pay your salary. Also, this step will establish whether you are a second preference (normally a person with at least a Master’s level education) or third preference (a person with less than a Master’s level education) immigrant. In some cases, the preference for which you qualify may determine how long it will take for you to immigrate to the United States. In some cases, it takes a person with a third preference approval longer to immigrate than a person with a second preference approval.
During the visa petition phase, it will be necessary to submit documentation from the employer demonstrating its ability to pay your salary. This will usually be in the form of a federal tax return, or for larger companies, a letter or annual report. In addition, it is at this step in the process that we will be submitting documentation regarding proof of your education and experience. Therefore, at that time, we will need diplomas, transcripts, and letters from your previous employers, as required. Normally, we request those items early in the labor certification process.
Assuming that the labor certification has been approved and that we have the necessary documentation, there should be no problems at this stage. On occasion, we may disagree with the Immigration Service as to whether a person should be classified as second preference or third preference immigrant. However, if that issue arises, we will give you a complete briefing of any possible ramifications.
By the time we file the visa petition, we must decide whether you will be applying for permanent residence here in the United States or at an American Consulate abroad. Normally, the application for permanent residence will be processed here in the United States. There are, however, reasons that may dictate processing through an American Consulate in the beneficiary’s home country such as the need for frequent travel abroad, local USCIS time delays, ineligibility for processing in the United States, etc.
Application for Permanent Residence:
The last stage in the process is applying for your permanent residence. This is generally the easiest step in the process and requires little involvement from the employer.
Take the first step towards a successful Green Card application by creating your account in our portal. If you have any questions, you can simply reply to the email you received.