About 140,000 employment-based immigrant visas are available each year for noncitizens who wish to live and work permanently in the United States. In most cases, a U.S. employer will need to sponsor your immigration and initiate the multi-step application process. A crucial step is Labor Certification, a process commonly referred to as PERM, which seeks to ensure that you are not taking a job from a qualified U.S. worker.
PERM Labor Certification
Before your U.S. employer can submit an immigration petition on your behalf to U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved Labor Certification from the U.S. Department of Labor (DOL). With this document, the DOL will verify that there are no U.S. workers who are willing, qualified, and available to accept the job at the prevailing wage for that occupation, level, and geographic area and that by hiring a foreign worker, the employer will not adversely impact the job opportunities, wages and working conditions of U.S. workers.
Because missteps in the Labor Certification process can lead to an audit and/or a denial of your application, it is advisable that you work with an experienced immigration attorney on each step of the PERM process, which begins with the submission of a prevailing wage request to the DOL.
Prevailing Wage Request
The DOL lists prevailing wages for different job classifications by geographic region, and the agency will compare this information to a detailed description of your job duties and other information to determine the minimum wage that your employer would be required to pay you.
Your employer, in consultation with you and an immigration attorney, should compile a detailed job description that includes job title, duties, minimum education and experience requirements, job location, and number of employees that you will supervise, if applicable, among other details. Once this description is finalized, an online request for a prevailing wage determination can be submitted to the DOL.
Advertising the Position
Your employer is also required to recruit for the position, which includes placing advertisements. These must include two Sunday print ads in a newspaper of general circulation covering the area of employment; internal postings at all of the company’s work locations; a 30-day online state job order run by the DOL; and three additional forms of recruitment. The additional forms may include job postings on the employer website; an employee referral program; on-campus recruiting; ads on a job search website; or a print ad in a local or ethnic newspaper. For jobs that do not require at least a bachelor’s degree, additional forms of recruitment are typically not required.
Your employer has likely already decided that it wants to give the job to you. But if candidates meeting the minimum qualifications come forward as a result of the recruitment process, your employer must make a good-faith effort to evaluate their applications and to contact them within 14 days. (Note: The employer need only consider applications from U.S. citizens, permanent residents, and individuals with asylee or refugee status.)
If there are qualified applicants who would be willing to accept the position, the PERM process cannot go forward at this time. Your employer could, however, start the whole process over again after a six-month waiting period.
Filing the PERM Application
If there are no other qualified candidates, your employer can file the PERM application. The DOL will review the application and either approve, deny or audit it. The DOL selects a small percentage of applications for random audits, but most audits result when red flags are raised by the application itself. Therefore, an immigration attorney’s guidance in following each step in a thorough and legally correct manner will help cut down on the possibility that your application will be chosen for audit.
If the DOL chooses to audit your application, the agency may request evidence that you completed all of the required recruitment steps and request explanations for your dismissal of applicants as unqualified. It is imperative that your employer keep good records of all relevant documents and correspondence with applicants. Auditors may also request more details about other parts of the application, such as an explanation of why the position requires a certain education level or number of years of experience.
In situations where the DOL has reason to suspect that other qualified candidates are available, the employer may be required to redo the recruitment under the agency’s supervision, with all applications directed to the DOL instead of the employer.
If the PERM application is denied, employers have the option of filing an appeal.
Once the PERM Application Is Approved
If the PERM application is approved, the next step is for your employer to file Form I-140, Immigrant Petition for Alien Workers on your behalf with USCIS. This must be done within 180 days of the approval. With the application, your employer must submit evidence showing it has the ability to pay you the stated compensation as well as evidence that you meet the minimum requirements for the position.
If you are already in the United States, and if there is an immigrant visa available, you may file Form I-485, Application to Register Permanent Residence, or Adjust Status at the same time that Form I-140 is filed. Form I-485 can also be filed while Form I-140 is pending or after it is approved, as long as it remains valid.