There are typically 3 steps involved in the employment based green card process: (1) PERM labor certification, (2) I-140 Immigrant Petition, and (3) I-485 Adjustment of Status application (or obtaining an immigrant visa at a U.S. consulate abroad if outside the U.S.). 

The PERM labor certification (PERM) process is a very lengthy, complicated, and often tedious process. Once the PERM application is approved, you have cleared a huge hurdle, but don’t forget about the next step: obtaining an approved I-140 immigrant petition. You will not be able to move forward in the green card process until this second hurdle is also cleared. Reddy & Neumann provides the following helpful information to help ensure an I-140 approval.

 

Evaluating the Beneficiary’s Credentials

The beneficiary must meet all minimum requirements for the job opportunity (1) from the day the PERM application is filed (priority date) and (2) prior to joining the sponsoring employer (unless an exception applies). There are many issues that can arise at the I-140 stage if all aspects of the beneficiary’s qualifications and credentials are not properly evaluated from the beginning of the PERM process.

1. Verify minimum education requirements are met:

If the job opportunity requires education, the beneficiary’s education documents will need to be closely reviewed prior to starting the PERM process. This will include a review of the beneficiary’s diplomas and transcripts and possibly obtaining an educational equivalency evaluation if needed. This may seem like a simple task, but the situation can get tricky depending on the specific educational requirements for the position.

Example 1: Employer ABC, Inc. requires a U.S. Bachelor’s degree in Computer Science or a foreign equivalent degree. The beneficiary has obtained a 3-year Bachelor’s degree in Computer Science from India prior to joining the sponsoring employer. In this situation, the I-140 petition would be denied because although the degree is in the appropriate field of study, a 3-year Bachelor’s degree in Computer Science from India is typically not considered to be a foreign equivalent degree. Obtaining an education evaluation at the beginning of the PERM process would have revealed this issue and an I-140 denial could have been avoided by properly wording the PERM application.

Example 2: Employer ABC, Inc. requires a U.S. Master’s degree in Computer Science or a foreign equivalent degree for the sponsored position of Software Engineer. The beneficiary obtained a U.S. Master’s degree in Computer Science from an accredited university on May 30, 2021. The employer initially hired the beneficiary as a Software Engineer (same role as PERM sponsored position) on January 30, 2021. In this situation, the beneficiary would not qualify for the job opportunity because they were hired as a Software Engineer prior to obtaining a Master’s degree. The I-140 immigrant petition would be denied because the beneficiary did not meet all minimum requirements for the position prior to joining the sponsoring employer.

Example 3: Employer ABC, Inc. requires a U.S. Master’s degree in Computer Science or a foreign equivalent degree. The beneficiary obtained a U.S. Master’s degree in the appropriate field of study, but after a quick search of the university, it is discovered that the institution that the beneficiary obtained the degree from is not an accredited college or university. In this situation, the I-140 petition would be denied because the degree is not from an accredited college or university in the U.S.

2. Verify minimum experience, special skill, license, and/or certification requirements are met:

If the job requires experience, a special set of skills, license, and/or certification, the beneficiary is required to demonstrate their qualifications by providing documented evidence. The beneficiary should have this documentation readily available for review prior to starting the PERM process to ensure they fully qualify for the job opportunity. Again, we do not want any surprises at the I-140 stage.  

Example 1: Employer ABC, Inc. requires a U.S. Bachelor’s degree in Computer Science or a foreign equivalent degree and 5 years of post-baccalaureate progressive experience. The position also requires that 5 years include experience with Java and SQL. In this situation, the beneficiary is required to provide documented evidence in the form of employment verification letters (EVL) specifically outlining any relevant experience obtained prior to joining the sponsoring employer. Further, the EVLs must account for the special skill-set required for the job opportunity – Java and SQL. The EVLs will need to demonstrate the progressive nature of the positions held throughout the beneficiary’s employment history as per the requirements. Note that all qualifying experience must have been obtained after receiving the Bachelor’s degree and must equal a full 5 years. If the experience is even 1 day short of the 5 year requirement, the I-140 petition will be denied.

Example 2: Employer ABC, Inc. requires a U.S. Master’s degree in Computer Science or a foreign equivalent degree and 3 years of experience for the sponsored position of Software Engineer. ABC, Inc. initially hired the beneficiary as a Software Engineer (same role as PERM sponsored position) on January 30, 2018 with no prior work experience. Although the beneficiary has over 3 years of experience with ABC, Inc., they would not be qualified for the job opportunity because all experience requirements must be met prior to joining the sponsoring employer (unless an exception applies – see example 3).

Example 3: Employer ABC, Inc. requires a U.S. Master’s degree in Computer Science or a foreign equivalent degree and 3 years of experience for the sponsored position of IT Project Manager. ABC, Inc. initially hired the beneficiary as a Software Engineer (different role than the PERM sponsored position) on January 30, 2018 with no prior work experience. In this situation, the beneficiary may be able to use the experience gained with the sponsoring employer to qualify for the IT Project Manager role if the position in which the experience was gained is not substantially comparable to the offered PERM position.  A “substantially comparable” job means a job requiring performance of the same job duties more than 50 percent of the time. A careful analysis of both positions would be required before starting the PERM process in order to ensure the 2 positions are more than 50% different.

Proving qualifying experience and special skill-sets:

The USCIS requires that employment verification letters contain the following information:

• Dates of employment: Both the start and end date must be provided on the EVL so that USCIS can verify the period of employment. Further, it is important that the dates of employment match the dates listed on the PERM application.
• Job Title: The job title held must be provided on the EVL so that USCIS can verify relevant experience as required on the PERM application. The job titles should match the titles provided on the PERM application.
• Job Duties: The EVL must contain any related job duties performed so that USCIS can further verify qualifications for the position.
• Special Skills: If the position requires a special set of skills, those will need to be accounted for on the EVL verbatim. For instance, if the position requires 2 years using Java and SQL, those skills must be accounted for on the EVLs.
• Additional Information: The EVL must state whether the position was full-time or part-time, be on company letterhead, be signed by a company representative (with the representative’s title listed), be dated, and contain the company’s address.

If EVLs cannot be provided, certain secondary evidence may be submitted, but USCIS has full discretion to accept that documentation. Some secondary evidence includes: Affidavits from previous co-workers or managers attesting to the beneficiary’s employment combined with offer/relieving letters on company letterhead, pay-stubs, and W-2s.

If USCIS feels that the documentation provided is insufficient or if USCIS notices inconsistencies between the documentation provided and the PERM application, the I-140 petition may be questioned or denied.

Although it is not required to have the EVLs prior to filing the PERM application, it is highly recommended so that all documentation can be properly reviewed and verified before filing.

Evaluating Ability to Pay the Prevailing Wage

At the I-140 stage, USCIS will verify that the sponsoring employer has the ability to pay (ATP) the beneficiary at least the prevailing wage or offered wage, whichever is higher.

The sponsoring employer must demonstrate its ability to pay the proffered wage from the priority date up until the green card is received. There are 3 ways to demonstrate ability to pay:

1. Evidence that the wage paid to the beneficiary is equal to or greater than the proffered wage (pay-stubs, W-2s);
2. Evidence that the company’s net income is equal to or greater than the proffered wage (annual report, tax return, or audited financial statement); OR
3. Evidence that the company’s net assets are equal to or greater than the proffered wage (annual report, tax return, or audited financial statement).

Although it is not required that the beneficiary work for the sponsoring employer up until the green card is received, the employer must still demonstrate its ability to pay the proffered wage. If the employer cannot provide evidence of its ability to pay, the I-140 petition will be denied. Therefore, it is very important to thoroughly review all financial information and documentation prior to starting the PERM process.

Example 1: The beneficiary is employed by Company A from the time the PERM application is filed and the prevailing wage is $95,000 per year. The beneficiary’s current salary is $96,000 per year. Company A can demonstrate ATP.

Example 2: The beneficiary is employed by Company A from the time the PERM application is filed. The prevailing wage is $95,000 per year and the beneficiary’s current salary is $85,000 per year. Company A has a net income of $300,000. The company can demonstrate it has the ability to pay the difference between the prevailing wage and the current salary ($300,000 net income covers the $10,000 difference). Company A can demonstrate ATP.

Example 3: The beneficiary is employed by Company A, but Company B files a PERM application on behalf of the beneficiary. The prevailing wage for the position is $95,000 per year. Because the beneficiary is currently working for Company A, Company B will have 2 options to demonstrate ATP: (1) through its net income or (2) through its net assets. Company B has a net income of $300,000. In this situation, the company can demonstrate ATP.  

Example 4: Same situation as above, but Company B has a net income of $20,000 and net assets that amount to $60,000. Also, remember that the beneficiary is not currently on payroll.  In this situation, Company B cannot demonstrate ATP.

Conclusion

A PERM approval does not guarantee an I-140 approval. In order to avoid any issues at the I-140 stage of the process, properly assessing all aspects of the beneficiary’s case is essential to a successful outcome. Every case is different and should be reviewed independently by a qualified immigration attorney.

For more information, please contact Krystal Alanis at krystal@rnlawgroup.com or schedule a consultation at https://appointments.rnlawgroup.com.

By: Krystal Alanis

 

 

 

 

 

Krystal Alanis is a Partner at Reddy Neumann Brown PC She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.