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April 2021

Is PERM Right for Your Business? Employment Based Path to Permanent Residence

There are several forms of green card sponsorship through employment that begin with the Program Electronic Review Management (PERM) labor certification. This labor certification is the first step in the employment-based sponsorship process and is administered by the U.S. Department of Labor.

The two major types of immigration petitions that require labor certification are:

  • EB-2 (Second Preference Employment-Based Immigration) involving professionals with advanced degrees or exceptional abilities.
  • EB-3 (Third Preference Employment-Based Immigration) involving professionals with a bachelor’s degree, skilled workers with two or more years of experience, and unskilled workers.

 

The Three Steps to Employment-Based Permanent Residence.

The employment-based permanent residence process is comprised of three steps: 1) PERM labor certification, which includes recruitment and prevailing wage determination; 2) Application for Immigrant Visa, Form I 140, and Ability to Pay; and 3) Adjustment of Status Process.
 

1. What is PERM Labor Certification?

Before an employer can sponsor a foreign employee for green card, it is necessary the approval from both the U.S. Department of Labor and the U.S. Citizenship and Immigration Services.

Labor Certification: Preliminary Considerations.

The employer is who determine the minimum requirements for the job position, and the position cannot be tailored to the foreign national. The job description and job offer are a bona fide job opportunity open to all qualified workers. The employer cannot have hired less qualified workers for substantial similar positions.

During this process, the attorney, handling the PERM labor certification, has limited involvement and can provide a checklist to guide the recruitment process, provide resources (O*Net, OOH, DOL) to help employers to determine the minimum requirement for the job and the job description, review advertising and submit the prevailing wage determination to the DOL based on the information provided by the employer.

The first step in the employment-based green card sponsorship is obtaining the PERM Labor Certification. This is governed by 20 CFR 656 and includes two major steps:

Labor Market Test:

During this process, the U.S. Employer must show through the recruitment process, that there are not sufficient willing, available, and qualified workers already in the U.S. who are qualified for the position offered to the foreign national. This is the required process to test the U.S. labor market. The employer must advertise the position, review resumes, and document the entire recruitment process for more than 30 days but less than 180 days prior to filing the application to ensure that there are no U.S. works available for the position. The recruitment process must be done according to law.

Prevailing Wage Determination:

The employer is required to offer at least the prevailing wage for the position and must demonstrate that the hiring a foreign national will not affect the wages and working conditions of similarly situated U.S. workers. The prevailing wage must be obtained before filing the PERM application on the DOL’s website using the ETA 9141 form.
 

2. The I-140 Employer’s Application for Immigrant Visa and Proof of Ability to Pay the Proffered Salary.

After obtaining approval of the PERM labor certification by the DOL the employer must file form I 140, Immigrant Petition for Alien Worker within six months of the approval of the labor certification.

During this time, the employer is required to show its ability to pay the proffered salary as of the date of the PERM was filed. This is an important consideration to discuss, even before starting this process, especially for small employers. The employer must attest that they have the ability to pay at least the proffered wage from the date of filing the PERM application. The proffered wage must be equal or higher than the wage on the prevailing wage determination. At this point in the process, the employer only attests to the ability to pay the salary, but it does not have to pay such salary.

If USCIS has any concerns about this, may require the employer to establish the financial ability to pay this wage as of the date the PERM labor was filed. Therefore, the employer is expected to provide annual reports, tax returns, and/or audited financial statements, and other types of records. If the employer has low net operating profits, or its net income is low for several years, and cannot show its ability to pay the proffered salary, it will certainly arise complications in the process, and perhaps trigger a denial.

The filing of the form I 140 will give the foreign national a priority date. This priority date is considered a place in the immigrant visa queue for an immigrant visa as they become available and it is published in the VISA Bulletin by the US Department of State. If the foreign national employee’s priority date is current, the I-485 application may be filed with USCIS concurrently with the I-140 Petition. If the priority date is not yet current, then it may be several months or years before the individual may file.
 

3. Adjustment of Status. The Final Step in the Permanent Residence Process.

The final step in the employment-based permanent residence process is the filing of the Adjustment of Status for the foreign national and his/her dependents. The foreign national and each family member must file and I-485 application to Adjust Status, provided that they are present in the U.S. and meet all the requirements for this particular process. If they are not physically present in the U.S., then they can initiate the consular process by filing DS-260 Immigrant Visa Application with the U.S. Consular Post of the foreign national country and attend an interview.

The Employment-Based Permanent Residence Process is a complex process that requires the expertise of an experience immigration attorney.

 

 

Silvina Tondini, Esq.
Silvina Tondini is a bilingual, skilled, international advocate, negotiator, and corporate counsel with years of diversified experience providing counsel and directing individuals and business clients on business and immigration law matters.

 

 

LET’S CONNECT

Attorney Silvina Tondini can be reached at (760) 579-7389 or by email at info@tondinilaw.com

Disclaimer: This blog is for informational purposes only. If you have any questions, please contact our office.