Green Card Through Job Offer Under PERM Labor Certification



Introduction

Welcome to our blog post where we will walk you through the step-by-step process of obtaining an employer-sponsored green card in the United States. The most common process, referred to as PERM labor certification or ‘PERM,’ is designed for foreign workers who receive a full-time job offer from a U.S. employer and wish to pursue permanent employment opportunities in the country. The perception that employment-based green card sponsorship is only available for higher-level professional positions is not accurate. In fact, most jobs qualify for the U.S. permanent residency process through PERM, which can encompass a range of roles. This includes jobs such as teachers, nurses, airline pilots, landscapers, truck drivers, researchers, performing artists, nannies, and more.

In this article, we will outline the essential procedures and requirements involved providing a comprehensive understanding of securing lawful permanent residency status through this particular green card path.

Prior to taking the substantive steps below, a crucial initial assessment involves analyzing the beginning stages of an applicant’s PERM process. An immigration attorney should review the applicant’s proposed job description, along with the applicant’s updated resume to determine whether the position being offered is classified as an advanced degree professional, professional, or skilled/unskilled worker. This determination will be key in understanding eligibility for the last phase of the green card process, commonly referred to as Adjustment of Status. The immigration attorney should also determine whether the proposed employment requires any prior experience and collaborate with others to obtain the necessary employment verification letters well before initiating the PERM steps below.

Now, let’s move on to the substantive phases of PERM labor certification.

Step 1: Prevailing Wage Determination

The first step under PERM labor certification involves obtaining a prevailing wage determination. This determination ensures that foreign workers are paid the same wages as similarly-qualified U.S. workers. The U.S. employer must submit a prevailing wage request to the Department of Labor detailing the job title, duties, work location, experience requirements, and educational qualifications. The Department of Labor reviews the request and provides a minimum wage that the employer must pay the sponsored foreign worker at the time the worker actually obtains his or her Green Card (this is a prospective future employer obligation).

Step 2: Recruitment in the Area of Intended Employment

To protect the U.S. workforce, the Department of Labor requires U.S. employers to make genuine efforts to hire qualified domestic employees before considering foreign workers. For recruitment purposes, sponsoring employers are only required to consider qualified U.S. citizens, permanent residents, refugees, or asylees. The recruitment stage involves the employer advertising the job in newspapers and other appropriate platforms in the area where the worker will be performing their job duties. Strict guidelines must be followed, including specific language requirements in advertisements, as well as timing considerations. Working with an experienced immigration lawyer is advisable to ensure compliance with these technical recruitment requirements. Although most employers undertake the recruitment phase after the prevailing wage determination arrives (Step 1), in some cases recruitment should be well under way even before the wage determination is issued. This is an option that should be explored especially if the prospective employee is facing some kind of urgent immigration deadline.

Step 3: Cooling Off Period

After completing the recruitment process, a mandatory cooling off period follows. During this period, the U.S, employer allows applications to trickle in from the recruitment efforts. The purpose of this period is to evaluate applications and conduct interviews to determine if any qualified U.S. workers are able, willing, qualified and available for the position. One common question raised by employers during this process is whether they are required to hire an applicant who seems to be qualified for the role. According to the Department of Labor’s FAQs, an employer is not required to hire a qualified worker when testing the labor market.

Step 4: PERM Application

Once the prevailing wage determination and recruitment steps are completed, the U.S. employer can proceed to file the PERM application with the Department of Labor on Form ETA 9089, which was just updated on June 1, 2023. The online PERM submission formally seeks authorization to hire a foreign worker for the position, indicating that suitable U.S. workers could not be found despite adhering to the prevailing wage determination and conducting appropriate recruitment efforts. The filing of the PERM application establishes a ‘priority date’ for the green card applicant and becomes important in Step 6.

Step 5: Form I-140

After the PERM application is certified by the Department of Labor, the process moves to US Citizenship and Immigration Services (USCIS). In this step, the U.S. employer files Form I-140 with USCIS, providing evidence that the sponsored foreign worker meets the requirements specified in the prevailing wage determination and PERM application and confirming that the employer has the financial ability to pay the offered salary to the applicant in the future. Form I-140 can be filed with or without premium processing. For some green card applicants, the sponsorship process will temporarily stop after this stage unless the State Department’s visa bulletin allows for the filing of the last part of the green card (Step 6).

Step 6: Adjustment of Status or Consular Processing

In Step 5, Form I-140 was filed with USCIS. Step 6 involves two potential pathways for the remaining part of the green card process, depending on the location of the worker and whether the worker’s priority date qualifies for the last phase of the green card under the visa bulletin.

a) Adjustment of Status: If the foreign worker is already in the U.S. under a valid nonimmigrant status, such as an H-1B or student visa, and their priority date (the date their PERM application was filed) is current under the visa bulletin, they may choose to adjust their status via Form I-485. This process entails transitioning from nonimmigrant status to lawful permanent resident status from within the U.S. While the Adjustment of Status is pending, a work authorization card and travel permission can be requested for the applicant and any qualifying family members.

b) Consular Processing: If the foreign worker is outside the U.S. or simply elects to process the last part of their green card abroad in their home country, they will undergo consular processing. This involves attending a visa interview at a U.S. consulate or embassy and, upon successful completion, receiving an immigrant visa stamped in their passport. They can then enter the U.S. as a lawful permanent resident, obtaining a green card.

Deciding which pathway to pursue for this last part of the green card process is important. If you are unsure, you can always select “Consular Processing” on your Form I-140 and then switch to “Adjustment of Status” from within the U.S. Switching from “Adjustment of Status” to “Consular Processing”, however, is much more difficult and may entail a lengthy delay from the National Visa Center, so it is best to think through potential filing venues ahead of Step 6, when possible.

Conclusion

Obtaining an employer-sponsored green card in the United States through PERM labor certification involves navigating through a series of complex procedures, starting with the Department of Labor and culminating with USCIS. From analysis of employment documents to wage determination to PERM application and subsequent Form I-140 filing, the journey can be labor intensive. It is crucial to seek guidance from an experienced immigration lawyer to ensure a strong foundation for your application and smooth and successful process.

We hope this blog post has provided valuable insight into one of the ways of obtaining an employer-sponsored green card in the U.S.

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