There are four steps involved in securing U.S. lawful permanent residence via PERM Labor Certification Processing from the labor market test until issuance of the green card.
- Labor Market Test
- Filing Form ETA 9089 PERM Labor Certification Application
- Filing Form I-140 Immigrant Visa Petition
- Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa
The Labor Market Test-Step One
Under PERM Labor Certification rules, an employer must conduct a test of the local labor market where the job is located. Regulations mandate the following labor market testing procedures:
- Obtain a Prevailing Wage Determination (PWD) from the U.S. Department of Labor (DOL). The PWD provides the required minimum wage the employee must receive;
- Publication of an advertisement in two (2) Sunday editions of a major newspaper covering the location of employment;
- Posting of a notice at the work site for ten (10) consecutive business days; and
- Posting of a 30 day job order with the State Workforce Agency.
If the position is professional, as defined in DOL regulations, three additional steps from the following additional ten options are required:
- Recruitment at Job fairs;
- Posting a Notice on the employer’s web site;
- Posting an advertisement on a job search web site other than the employer’s;
- On-Campus Recruitment;
- Publication of an advertisement in a trade or professional publication specific to the industry;
- Posting a job opening with a private employment firm;
- Posting a notice at a campus placement office;
- Publication of notice using the employer’s in-house incentive referral program;
- Publication of an advertisement in a local or ethnic newspaper; or
- Publication of an advertisement on radio or television.
Filing Form ETA 9089 PERM Labor Certification Application-Step 2
After the labor market test is completed, the employer electronically files a Form ETA 9089 Application for Permanent Employment Certification with the DOL. The date an application is filed is the employee’s “Priority Date.” The priority date is utilized to determine a person’s place in the immigration quota and when an immigrant visa number can be allocated to an individual.
During review of a PERM application, if the DOL wishes to audit an application, the DOL gives notice to the employer to provide the requested audit documentation within 30 calendar days. Upon receipt of the requested audit documents, DOL continues processing. Failure to timely submit the audit documents will result in denial of the PERM Labor Certification. Further, the sponsoring company could be subject to DOL penalties.
When the PERM application is approved, the DOL issues a certified Form ETA 9089. Upon receipt of a certified Form ETA 9089, an employer must file an I-140, Immigrant Visa Petition and all supporting evidence with the USCIS within 180 days of the DOL certification date.
Filing of I-140 Immigrant Visa Petition-Step 3
The Form I-140, with all supporting evidence, is filed with the USCIS. In addition, under certain circumstances, depending upon an employee’s nationality and immigrant visa classification sought, a Form I-140 and Form I-485 (Step 4 in the process) can be filed concurrently. This is called “Combined Processing” and is explained further below under Adjustment of Status.
Issue – USCIS Premium Processing Option for I-140 Petition
The USCIS offers Premium Processing of certain I-140 petitions upon payment of the current Premium Processing filing fee. The USCIS will process the I-140 petition within 15 calendar days from the date the USCIS receives the I-140 petition. This substantially reduces the processing time of an I-140 petition.
Issue – Company’s Ability to Pay Wage Offered
One important consideration in processing an I-140 petition is the ability of the petitioning company to pay the wage offered in the petition. An employer is not obligated to pay the wage offered in the I-140 petition to the foreign national employee until U.S. lawful permanent resident status is granted.
However, a petitioning company must submit copies of recent non-consolidated tax returns, annual reports or audited financial statements to prove its ability to pay the wage offered. A company is determined to be able to pay the wage offered if one of the following tests is satisfied:
- The foreign national employee is already employed with the petitioning company and is being paid at least the wage offered in the I-140 petition;
- The petitioning company’s net income exceeds the wage offered in the I-140 petition to the foreign national employee; or
- The petitioning company’s net current assets exceed the wage offered to the foreign national employee.
A petitioning company is obligated to prove its ability to pay the wage offered from the date the foreign national employee’s “priority date” is established (i.e. date of PERM filing) until the foreign national employee is granted U.S. lawful permanent residence status.
Issue – Priority Date
A priority date is established on the date a PERM Labor Certification application is filed with the DOL. The priority date determines a person’s place in the queue of a specific employment-based preference category. Priority dates are allocated based upon a person’s country of birth, not nationality. For example, a person applying for Second Preference Employment Category (EB-2) with a Japanese passport, but born in India, would be classified under the Second Preference (EB-2) India quota.
Due to the current quota system, when an I-140 petition is approved, a person may need to wait until his/her priority date is at the “front of the line”.
Issue – Monitoring the Priority Date
Around the middle of every month, the U.S. Department of State (DOS) publishes the Visa Bulletin which summarizes the availability of immigrant numbers. Allocations of immigrant visa numbers are made in chronological order of priority date (i.e., date of filing the PERM application) under the numerical limitations imposed by law.
Section 201 of the Immigration and Nationality Act (INA) imposes a worldwide annual limit of 140,000 employment-based immigrant visas. Section 202 of the INA prescribes that the per-country limit for all immigrants from a country be set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620 per annum.
If the demand for available immigrant visas in a particular visa preference category exceeds supply, an immigrant visa cannot be issued until the Visa Bulletin shows the priority dates that can be allocated an immigrant visa. This is called the cut-off date. Only applicants with a priority date on or earlier than the cut-off date in his/her preference category may be allotted an immigrant visa number.
If an individual’s priority date is indicated as “C” in the Visa Bulletin, this means there are immigrant visa immediately available for persons in the listed classification. The “C” stands for “Current”. If the Visa Bulletin shows a “U” for a particular preference category, this means immigrant visas are unavailable. The “U” stands for “Unavailable”.
An additional consideration is a person’s nationality. If a person is a national of China, India, Mexico or the Philippines, there may be a longer wait to proceed to the fourth and final step in the process because high demand for immigrant visas from these countries greatly outstrips supply on a regular basis.
Approval of the I-140 Petition
When the USCIS approves the I-140 petition, a Form I-797 Approval Notice is issued. Once the I-140 petition is approved, and the priority date is current, an individual must decide which process to undertake to complete the fourth and final step in processing the green card application: Adjustment of Status Application or Consular Processing of Immigrant Visa.
Adjustment of Status (Form I-485)-Step 4: Option 1
Once an I-140 petition is approved, the person’s priority date is current, he/she is legally present in the United States, and the person wishes to adjust his or her status from nonimmigrant to immigrant while in the United States, the person files a Form I-485 Adjustment of Status application with the USCIS. All family members intending to immigrate with the principal applicant (i.e. spouse and minor unmarried children under the age of 21 years) should file an adjustment of status application concurrent with the principal applicant. All applicants must submit medical examinations to the USCIS. Further, all applicants over the age of 14 must undergo fingerprinting and a FBI background check.
Issue-Travel and Employment During the Adjustment of Status Process
When an adjustment of status application is filed, the principal applicant and each family member may apply for an Employment Authorization Card (EAD), which authorizes employment in the U.S., and an Advance Parole (AP), which authorizes international travel and re-entry into the U.S. The USCIS often issues one document that combines the employment authorization and the advance parole. This document is called a Combo Card.
As long as the adjustment of status application is filed prior to the expiration of a person’s nonimmigrant status, the person is deemed “in-status” and can remain in the United States after expiration of his/her nonimmigrant status. Application for a Combo Card should be submitted with the I-485 to avoid any gap in employment.
The AP is a critical document if a person does not possess a valid H-1 or L-1 visa because, after the submission of an I-485, neither the principal applicant nor his/her family members may leave the United States without first obtaining the AP. If such a person departs the U.S. without first obtaining an AP, that individual may not be readmitted into the United States.
All nonimmigrant visa classifications, other than H-1 or L-1, require issuance of an AP to return to the U.S. after international travel while an Adjustment of Status application is pending. If a person has a valid H-1 or L-1 visa, he or she may continue to work and travel utilizing the H-1 or L-1 visa as long as his/her status remains valid and he/she is returning to the U.S. to continue employment with the same petitioning company that sponsored the H-1 or L-1 status. H-4 or L-2 visa holders may continue to travel and legally remain in the United States.
Issue-Delays Due to Lengthy FBI Background Checks
When the USCIS processes the I-485, all applicants under the age of 14 years must undergo a FBI background check. For some individuals, the FBI background check is completed very quickly, sometimes in a few months. For others, the process can take longer, sometimes many months. The USCIS issues a Biometrics Appointment Notice to each family member requiring an FBI background check. Each person is directed to go to an Application Support Center (ASC) and have his/her fingerprints scanned for the check.
Issue-Delays Due to Personal Interview at USCIS District Office
Effective October 1, 2017 all individuals and all accompanying family members seeking to immigrate through employer sponsorship must undergo personal interviews at local USCIS District Offices. Waiver of interviews is no longer permitted.
Issue-Change of Employers During the Adjustment of Status Phase of the Application
With the passage of the American Competitiveness in the Twenty First-Century Act (AC21) in the fall of 2000 a dramatic change occurred. Under certain circumstances, an employee is able to change sponsors for his/her green card and immigrate through a new employer.
A person must generally meet the following three conditions to qualify under this rule:
- The Form I-140 petition must be approved by the USCIS;
- 180 calendar days must have passed since filing of the Form I-485, Adjustment of Status application; and
- The new job with the new company is in the same or a similar occupational classification as the one for which the I-140 petition was filed.
The USCIS has very specific rules which govern this area. It is highly recommended a person seek counsel with an immigration attorney prior to changing employers in this situation.
Approval of the I-485
When the USCIS approves the I-485, a Form I-797 Approval Notice is issued. The USCIS then manufactures the I-551, Alien Registration Receipt (commonly known as a green card) and mails it to the applicant.
Consular Processing of Immigrant Visa-Step 4: Options 2
The alternative option to the Adjustment of Status application is the Consular Processing of Immigrant Visa. When choosing the Adjustment of Status option a person is seeking final interview in the U.S. When choosing the Consular Processing of Immigrant Visa option, a person is seeking final interview at the overseas U.S. Embassy or Consulate in the person’s home country.
After an I-140 is approved by the USCIS, if a person chooses the Consular Processing option, the USCIS will transfer the I-140 file to the National Visa Center (NVC). Upon receipt of the file, the NVC will issue a notice the file has been received. If the person’s priority date is not yet current, the NVC informs the person his/her file will remain at the NVC for storage.
Once a person’s priority date is current, the NVC issues an Immigrant Fee Bill requesting the individual to pay the immigrant visa application fee to the NVC. When NVC receives the payment from the applicant, NVC issues instruction for completing the registration forms. Further, the NVC issues a list of required documents for submission to the NVC,such as police clearance certificates, military records, marriage certificates, etc. Upon receipt of the completed registration forms and required documents, the NVC transfers the file to the appropriate overseas U.S. consulate and schedules the immigrant visa interview date.
Upon U.S. consulate receipt of the file from the NVC, the case data is entered into the U.S. consulate’s case tracking system. The person must return to his/her home country to undergo a medical examination with a U.S. consulate designated physician and attend a personal interview.
After the immigrant visa interview, the applicant is issued an immigrant visa. The applicant must enter the United States within six months of immigrant visa issuance. Failure to make an entry within six months renders the immigrant visa invalid. Further, the principal applicant must either enter before his/her family members or at the same time.
When entering the United States for the first time after immigrant visa issuance, the applicant is inspected at the U.S. land border or airport and the immigrant visa validated. The admission stamp placed on the immigrant visa validates it and demonstrates the applicant is a U.S. lawful permanent resident. The actual green card is mailed to the individual’s residence in the United States.