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Employment-Based Immigration

PERM ( Labor Certification ( EB-2 & EB-3)

Permanent Residency through Labor Certification (PERM)
This is probably the most commonly used path to U.S. permanent residency in the category of employment-based immigration. For employment-based Second Preference (EB-2) and Third Preference (EB-3) immigration, the filing of labor certification is a must.

There are three steps in this process:

  1. Employer filing a permanent alien labor certification (PERM) with the U.S. Department of Labor (DOL);
  2. Employer filing an immigrant petition (I-140) for alien worker with the U.S. Citizenship and Immigration Services (CIS); and
  3. Foreign worker/employee filing an application (I-485) to register permanent residence with the CIS.

First Step: Labor certification application
To obtain a labor certification from the U.S. Department of Labor, the sponsoring company/employer must prove to the satisfaction of the Department of Labor that, after reasonable recruitment efforts, it has been unable to locate a minimally qualified U.S. worker willing to accept the position. In many cases, this position is the same job in which the foreign national is already employed on a temporary basis (typically pursuant to H, E, L-1B or TN status).

The qualifying criteria for filing a permanent alien labor certification application:

  1. The employer must hire the foreign worker as a full-time employee;
  2. There must be a bona fide job opening;
  3. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications;
  4. The employer should document that the job opportunity is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity; and
  5. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Recruitment procedures and requirements for filing a labor certification application:
For professional positions, the sponsoring employer is required to place two Sunday ads in a major local newspaper, or as an alternative to two Sunday ads, the employer may place one Sunday ad and one professional journal ad, AND place a job order for 30 days with the local State Workforce Agency (SWA), AND place the same ad in any three of the following:

  1. job fair;
  2. employer's website;
  3. job search web site other than employer's;
  4. on-campus recruiting;
  5. trade or professional organizations;
  6. private employment firms;
  7. an employee referral program;
  8. a notice of the job opening at a campus placement office, if the job requires a degree but no experience;
  9. local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and
  10. radio and television advertisements.

For non-professional positions, the sponsoring employer is only required to place two Sunday ads in a major local newspaper.

In addition, for either professional or non-professional positions, the employer must post notice of job opportunity for at least 10 consecutive business days internally. In addition to the printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.

Filing the petition:
The labor certification may be filed online (recommended) or by mail. The supporting documents will not be submitted but the employer must maintain supporting documentation for five years from the date of the filing in case of an audit, which may be generated by random selection or by a particular entry in the application.

Adjudication time:
The expected adjudication time by DOL is between 45 to 60 days.

PERM v. Standard/RIR
PERM is an acronym which stands for Program Electronic Review Management system.
It is the new, automated Labor Certification system in place since March 28, 2005. For persons who previously filed a Labor Certification case using the standard or RIR methods, their cases have been transferred to one of two Backlog Elimination Centers (BEC). It is not yet known how long it will take for the BEC to finish processing these transferred case. Therefore, it is strongly recommended to consult experienced immigration attorneys to weigh the pros and cons of refilling the labor certification under the new PERM system.

Second Step: Immigrant petition
After obtaining a certified labor certification, the employer may use this certified labor certification to file an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (CIS) on form I-140. The I-140 petition must include proof that the foreign national qualified for the position described in the labor certification and that the company had the ability to pay the wage offered in the labor certification from the time of filing the labor certification until the foreign national obtains permanent residence status. The evidence required to show the employer's ability to pay the proffered wage include one of the following three: the company's U.S. Corporation Income Tax Return, or Annual Report for a public company, or in private company situation, audited financial statement(s) of the company for the required/applicable years.

Third Step: Permanent residence application
Once the I-140 immigrant petition is approved, the foreign national may apply for permanent residence status either by filing a Form I-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States. In cases that the visa number is current, the foreign national may concurrently file his/her I-485 adjustment application with the employer's I-140 petition.





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