Obtaining a Visa Based on Employment
Legal Permanent Resident Status Based on Employment
The process for obtaining permanent resident status based on employment is comprised of three phases: the labor certification, the visa petition and the application for permanent residence (“green card). The purpose of this memorandum is to describe the three phases and to provide you with information regarding the company’s involvement in each phase. This memo is strictly to provide information, and does not provide legal advice. A full consultation with the attorney is necessary to determine eligibility for legal permanent resident status.
I. Labor Certification
The first step involved in the process of sponsoring an employee for legal permanent residence is to obtain a labor certification from the Department of Labor. A permanent labor certification certified by the Department of Labor (“DOL”) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the D.O.L.'s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The DOL processes applications for Alien Employment Certification (ETA Form 9089). The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the USCIS service center with an I-140, Immigrant Petition for Alien Worker. You may access the State Department Visa Bulletin to learn which priority dates are currently being processed.
Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new PERM Regulations. The employer must hire the foreign worker as a full-time employee. There must be a bona fide job opening available to U.S. workers. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Process for Filing:
Based on conversations with persons at your company, our office will draft the advertisements, which must include a job description, minimum job requirements, and the salary being offered. We will also provide legal assistance to you as you evaluate the responses from U.S. applicants. Finally, we will draft all documents and letters based on information that we obtain from our conversations with persons from your company. Under normal circumstances, the labor certification is then granted.
- Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.
- Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
- Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
- Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
- Audits/requests for information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
- Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
- Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
The employer can access a customer-friendly web site (www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, you will be able to:
- Save time by pre-populating your general information
- View the status of your labor certification applications online
- Update your profile information online
- Track newly submitted labor certification applications
- Email saved labor certification applications to others within the company
- Add new users to your account
- Withdraw labor certification applications no longer needed
- Filing by mail. National Processing Centers have been established in Atlanta and Chicago. Employers submit paper applications to the processing center with responsibility for the state or territory where the job opportunity is located.
- Approvals. If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application.
Our firm is proactive and will identify problems up front. Common problems/issues include those related to the prevailing wage, experience gained on the job, education level required, and special requirements. We will work with you to resolve any problems early in the process.
A “labor certification” is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill the position held by the sponsored alien employee, and that the company is paying and will pay the employee the “prevailing wage.” The labor certification is valid only as long as three things remain unchanged: the alien continues to work (1) for the same employer, (2) at the same location, and (3) doing the same job. Therefore, any promotions or significant changes in job duties or location before legal permanent residence is obtained will probably invalidate the labor certification, thus making the applicant ineligible for permanent residence. If you are contemplating any promotions or changes in job title, job duties, or job location for the position being certified, it would be advisable to make them before the labor certification process is started, or inform us of any planned changes or promotions preferably before we start this process, so we can anticipate these changes when we draft the forms.
Processing times for a Perm application vary from application to application. Approvals may be obtained within a month of submitting the application to several months, and up to a year in some cases.
II. The Visa Petition—Employment Based Visa
Upon receiving an approved labor certification, our office prepares a visa petition, (I-140 Employment Based Visa) which will be signed by the employer and is submitted to the U.S. Immigration and Naturalization Service along with the labor certification papers. At this time, the employer must submit documentation establishing the company’s ability to pay the employee’s proffered wages. In addition, we will be submitting documentation received from the employee verifying that he or she meets all of the minimum requirements listed in the labor certification. Processing time can vary as well. Once this petition is approved by the USCIS, then the foreign national may apply for permanent residence (3rd step) if the visa is available according to the Department of State Visa Bulletin. In cases where the visa is available at the time of filing the visa petition, the foreign national may concurrently file the application for permanent residence.
III. Application for Permanent Residence
The last phase of the process is the foreign national applying for adjustment of status (green card application) if the visa is available. The availability of employment visas is determined by the Department of State Visa Bulletin published on a monthly basis. If the foreign national’s priority date is current, then the foreign national can apply for his/her legal permanent residency, otherwise the foreign must wait until the priority date becomes current. At this state the employer’s involvement consists of providing a letter verifying the alien’s employment with the company, and, on occasion, a notarized Job Offer form. Although the employer’s involvement at this stage is minimal, we will be spending much time assisting the employee in gathering required documentation, such as birth certificates and marriage certificates, etc., to complete this rather involved stage of the process. At the end of this step, the employee may be granted permanent residence, and, shortly thereafter, be issued a “green card” as evidence of permanent residence. At this point, our representation of your company will come to an end, at least regarding that particular employee.
This memo gives only a brief overview of the rather detailed and complicated process. With our assistance, however, the process should be fairly simple and straight forward for you. We will do everything possible to simplify your tasks and minimize the amount of time spent by employees at the company on this matter and we will provide expert assistance at every juncture. Of course, we will be happy to answer any questions regarding this matter or any immigration matter you may have.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.