Employers seeking green cards for their foreign national employees will have to navigate the Program Electronic Review Management (PERM) application process. In this three-step green card process, employers will have to prove that they cannot find qualified and available U.S. workers to fill the position to obtain a certified PERM application. Once certified, then the employer must file an immigrant visa petition with the USCIS, and the foreign national employee can file an application to adjust status to permanent resident if already in the United States and an immigrant visa number is immediately available. If the foreign national is abroad, then they must obtain the final step of the process at a U.S. consulate overseas.
At Trow & Rahal, we help employers through this process, making it as easy and uncomplicated as possible. The following is a detailed explanation of the steps involved in filing a PERM application.
Step 1: PERM Application
a) Prevailing Wage
Before filing a PERM application with the U.S. Department of Labor, the employer must file and obtain a prevailing wage determination (PWD) from the U.S. Department of Labor. The DOL is currently taking about 6 – 8 months to issue a PWD. It is recommended that the recruitment is not started until the PWD is obtained unless the employer agrees to pay whatever wage the DOL issues.
b) Recruitment
Most employers must maintain documentation of the recruitment in the event of an audit or response to a request for additional evidence to show that they conducted recruitment and were not able to find qualified and available workers. This recruitment involves:
A job order and two print advertisements are mandatory for all applications involving professional occupations, except for college or university teachers. The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before filing the application.
Mandatory recruitment steps are as follows:
- Placement of a job order with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. Documentation of this step includes the start and end dates of the job order entered on the application.
- Placing an advertisement on two different Sundays in the newspaper of the general or widest circulation in the area of intended employment. A professional journal would be used to advertise a job if the job requires experience and an advanced degree. Furnishing copies of pages showing where the advertisements appear will satisfy the documentation requirement.
For professional positions, the following list provides options for three additional forms of recruitment that must be selected by the employer. Only one of these additional steps may take place during the 30-day “quiet period” that is required before filing, but no more than 180 days of filing the application:
- Employer's website
- Other job search web site (such as the website of a newspaper where the print ad runs)
- On-campus recruitment (where an employer sets up interviews on campus)
- Trade or professional organizations
- Private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local/ethnic newspapers
- Radio/TV ads
- Job fairs
For nonprofessional occupations (those that do not require a bachelor's degree), employers are not required to conduct the three additional forms of recruitment. However, they must at a minimum, place a job order and two newspaper advertisements within six months of filing the application.
Documenting the Recruitment Process
Employers must prepare an audit file of their recruitment efforts, including copies of ads, resumes, and results describing the lawful reasons for rejecting applicants, documentation of how the foreign national employee satisfied the minimum requirements, and documentation of any issues relating to the attestations on the application form in case the application is selected for audit. The audit file must be available in case there is an audit on the case by the U.S. Department of Labor.
If there has been a layoff by the employer in the same occupation or a related occupation within six months of filing an application, then the employer is required to notify and consider potentially qualified laid-off U.S. workers.
Understanding the Application and Attestation Process
The 14-page application, ETA Form 9089, is usually filed through the DOL online portal.
The current processing time for a PERM application is approximately six months if the application is not selected for an audit and up to 12 months or more if selected. These are estimated processing times. The application form requires the employer to make attestations about the job offered, the recruitment conducted, the family relationship between the employer and employee (if any), how the employee satisfies the minimum requirements of the position, and other related issues. The form also requires the employers to attest that they have considered U.S. workers who could be trained within a reasonable period to perform the duties of the position, even though they may not meet the minimum requirements, and that it offered the job opportunity to recently laid-off workers.
Form ETA 9089 further requires the following attestations:
- The employer will pay a wage greater than or equal to 100% of the prevailing wage when permanent residence is issued or from the time the foreign national is admitted into the United States.
- The wage is not based on commissions, bonuses, or other incentives unless these are guaranteed and paid at least monthly.
- The employer has sufficient funds to pay the offered wage.
- The employer is able to place the foreign national employee on its U.S. payroll on or before the entry of the foreign national into the United States.
- The job offered does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship.
- The position is not vacant because the former occupant is on strike or locked out or at issue in a labor dispute involving a work stoppage.
- The terms, conditions, and occupational environment are not contrary to federal, state, or local law.
- The job has been and is clearly open to any U.S. worker.
- U.S. workers who applied were rejected for lawful job-related reasons.
- The job opportunity is for full-time, permanent employment for an employer other than the foreign national.
Audits, Denials, and Revocations of the Application
The DOL will audit PERM applications in three situations: randomly, based on pre-selected criteria on Form 9089, and through a review process by DOL officers. The DOL is likely to audit applications and request additional information if:
- The foreign national's qualifying work experience or education was gained while employed by the sponsoring employer.
- There is a family or financial connection to the employer.
- The employer paid for education or training.
- The employer has made layoffs in a related occupation within the past 180 days.
- There have been significant layoffs in the industry that is the subject of the PERM application.
- If the requirements for the position exceed what DOL considers the "normal" requirements for the position.
- Specific other issues arise.
Currently, DOL reports that about 30% of the applications filed are being audited. The employer should prepare documentation relating to these issues prior to filing the application and must maintain that documentation for five years.
Lastly, the DOL has reserved the right to revoke any approved application at any time in the future. If the DOL determines through an audit that the employer did not conduct the recruitment in a satisfactory manner, the DOL will require the employer to conduct additional supervised recruitment. In addition, the DOL can require an employer to conduct supervised recruitment for all future applications for a period of two years.
Step 2: Immigrant Visa Petition
After the DOL approves the PERM labor certification application, the next step is to prepare and file an immigrant visa petition (Form I-140) with U.S. Citizenship and Immigration Services (USCIS). By filing the immigrant visa petition, the employer is indicating that, through the prior PERM labor certification application process, it has been unable to find qualified U.S. workers for the position and that it has identified a foreign national who is qualified for the U.S. position
With the immigrant visa petition, the employer must submit documentation indicating that the foreign national met all of the minimum requirements for the position as indicated in the advertisements before the date the PERM application was filed (i.e., its priority date). The employer must also demonstrate that it presently has the ability to pay the offered wage and had the ability to pay the offered wage when it filed the labor certification application with the DOL. The USCIS takes approximately seven to eight months to adjudicate the I-140 petition, depending on the employment category. This can be reduced to 15 days by paying an additional $2,500 premium processing fee to the USCIS.
Current law permits the concurrent filing of the immigrant visa petition (Step 2) and the application to adjust status (Step 3), in which the USCIS will adjudicate both applications at the same time. However, the application to adjust status (Step 3) can only be filed concurrently with the immigrant visa petition if the foreign national's priority date is "current" and there is an available immigrant visa number.
Priority Dates
For employment-based green card applications involving labor certification applications, a person's Priority Date is the date the PERM application was filed with the DOL. It represents a place in line to get a green card based on the country of birth and the employment preference category under which the PERM application was approved (e.g., EB2-requiring a master's degree or EB3-skilled worker category).
The U.S. Department of State publishes a monthly Visa Bulletin, which lists birth countries and final action dates for different immigration categories, including employment-based categories. In the Visa Bulletin, the government independently indicates the most populous countries and groups the others in a single line. These are the countries with the highest demands for an immigrant visa (For these certain countries, the delay is longer because there is more demand than there are visas available.
Step 3: Adjustment of Status or Consular Process
If the foreign national is in the United States with temporary work authorization, the last step in the process is to file an application to adjust status to permanent resident status using Form I-485. This step cannot be filed until an immigrant visa petition is approved or concurrently filed and the person's priority date is current.
If the foreign national resides outside of the United States, the last step is to file for an immigrant visa at the U.S. Embassy or Consulate in the foreign national's country of nationality or last foreign residence. This process is called “consular processing.” In some cases, a foreign national who is eligible for adjustment of status in the United States may still choose to file for an immigrant visa abroad to complete the green card process. As with the adjustment of status, this last stage cannot be filed and processed until an immigrant visa number is immediately available, meaning that the priority date is current.
Are You an Employer Seeking Legal Immigration Help to Retain Your Foreign Talent?
If you are an employer seeking legal immigration help to retain your foreign employees, you should speak with an experienced immigration attorney as soon as possible. We have been helping employers with the immigration process related to their employees since 1993 and always work towards exceeding expectations. Please contact us online or call our office directly at 202.537.4830 to discuss your specific business immigration legal needs. We service clients throughout the United States from our Bethesda, Maryland office and look forward to working with you.