California Immigration Lawyer, Asylum Lawyer, Deportation Attorney, US Immigration Attorney

It is common knowledge that most people  obtain their permanent residence (“greencard”) through family petitions (marriage, siblings and parents) or asylums. This is quite true. However, there is a significant majority of people especially in the Bay Area who have obtained their permanent residence through employment. In fact, our office has successfully processed many of such cases.   First before proceeding to filing such petitions, you have to have an employer who is ready to offer you a position.  There are some other petitions that do not require an employer such as National Interest Waivers. But this article will concentrate on the labor certification process.  Note that because such petitions are for future prospective employment, you do not have to be working for this employer until you get a greencard in your hand. Thus a labor certification can be processed even if you are not working for this particular company right now. In fact, you can even start the process when you are outside the United States. For instance while you are in Fiji.

 The process for obtaining permanent residence based on employment consists of three phases: 1) the labor certification, (Processed with the Department of Labor) 2) the visa petition, and 3) either adjustment of status (obtaining a green card without leaving the United States, if the employee is eligible) or consular processing (processing in which the employee would leave the United States in order to obtain an immigrant visa).   

Labor Certification Application 

A “labor certification” is a certification by the United States Department of Labor that a shortage of qualified U.S. workers exists with regard to this specific job, and that the prospective immigrant employee will be paid the “prevailing wage”. This certification must be obtained before an immigrant visa can be filed. One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. Because this factor is so critical, a good attorney should spend a substantial amount of time obtaining and digesting information and then drafting the appropriate paperwork. It is extremely important that we all correctly describe the minimum requirements for the job as well as explain the reasons why these requirements are necessary. The employer will be required to sign the form ETA 9089 (labor certification application) as well as a letter on company letterhead describing the position that it is recruiting for, why the beneficiary (prospective immigrant employee) qualifies for this position, and what recruitment efforts have been undertaken to fill the position.   

Program Electronic Review Management (PERM) 

Under PERM, the Program Electronic Review Management scheme recently implemented by the United States Department of Labor, the following recruitment steps must be undertaken for a labor certification application to be approved, and they must be undertaken More than 30 days but less than 180 before the labor certification application is filed:   1) placement of a job order on the website of the State Workforce Agency; 2) placement of print advertisement on 2 consecutive Sundays in a newspaper of general circulation; 3) an internal notice, listing the wage to be paid, at the employer’s site for 10 consecutive business days; and IF THE JOB IS FOR PROFESSIONAL POSITION; 4) recruitment in three out of ten other specified ways.  The employer, however, could be subject to an audit which would arise either randomly or by investigation. If the employer is audited, then the process will take longer. The purpose of the audit would be to determine whether the employer has taken the recruitment steps that it claims to have taken on the labor certification application.

To that end, regulations require that the employer maintain a detailed report of its recruitment efforts.

This recruitment report must minimally contain four items: 

1. A description of the recruitment steps undertaken
2. The number of resumes or applications received
3. The number of people hired from the recruitment efforts,
4. The number of U.S. workers rejected, categorized by lawful job related reasons for rejection. (Please note that if a person is rejected in the recruitment report for lacking skills necessary to perform the duties but the skills could be acquired during a reasonable period of on-the-job training, this will not be considered a lawful, job related reason for rejection)

 In addition, the PERM regulations require the following steps to be taken:

 ·        The employer must save documentation, such as copies of advertisements and the posting notice, and other in-house recruitment documentation for the position.  

 ·        If applicable, the employer must justify in writing any special skills or experience required for the position in a fashion that satisfies the Department of Labor’s “business necessity test.”

 ·        Finally, the employer must sign the recruitment report and maintain it for five years from the date of filing, along with all evidence of recruitment, so that the employer is prepared in the event of a DOL audit or investigation.    

 The Visa Petition (Form I-140)

 Upon receiving an approved labor certification, a visa petition is prepared and then  is submitted to the U.S. Citizenship and Immigration Service (Formerly the “INS”). The purpose of the visa petition is to prove to the Immigration Service that: (1) the job has been certified by the Department of Labor, (2) the prospective employee meets all of the requirements listed on the labor certification, and (3) the employer has the ability to pay the salary to the employee.  During the visa petition phase, it will be necessary to submit documentation demonstrating the employer’s ability to pay the employee’s salary. This will usually be a federal tax return, or for larger companies with 100 employees or more, a letter from the chief financial officer, or an annual report. In addition, it is at this step that we will be submitting documentation regarding proof of your education and experience. Therefore, at that time, you will  need to provide diplomas, transcripts, and letters from previous employers, as necessary for the employee. Normally, our office requests those items at the initiation of the labor certification process. This process is currently taking 8-12 months to adjudicate. At this stage you may opt to obtain your Immigrant’s Visa at a consulate abroad or file for an application for permanent residence as explained below. 

The Final step: Application for Permanent Residence (Form I-485 and Form I-765) 

This phase, applying for permanent residence status, can be concurrently filed with the visa petition and completed without the prospective employee leaving the United States only if the following two conditions are met: 1) a visa number is currently available in the employment-based preference category under which the petition is filed; 2) the prospective employee is eligible to apply for adjustment of status to that of permanent resident . If this option is available, the petition and the application for permanent residence are currently taking about 3-24 months from filing to decision. However, in the meantime, the prospective employee can apply for and receive an Employment Authorization Document based upon the pending application for adjustment of status in approximately 90 days. Again, our office can assist in preparing all the forms and ensuring that the supporting documentation is complete.  If a visa number is NOT currently available in the employment-based preference category under which the petition is filed, then the application for permanent residence cannot be filed until the visa petition is approved and a visa number becomes available. In that case, there would be no pending application for which adjustment of status on which to base an application for an Employment Authorization Document. On the other hand, if the visa petition is approved, but if the prospective employee is not eligible to adjust status to that of permanent resident without departing the United States, the prospective employee will have to depart the United Sates and obtain his or her visa from the U.S. embassy (or a consulate) at his or her home address outside the U.S..   At this stage, the prospective employee must begin obtaining the following documents if he or she does not already have them in possession.               

1. a birth certificate of the employee and any family members;
2. a marriage certificate if married;
3. divorce decrees or other proof of the termination of any prior marriages; 
4. current passport(s) valid for at least the next year or two; 
5. police certificates from any country in which he/she has resided for more than one year after the age of 16 (this is only required if you will be processing through an American Consulate outside the United States); and 
6. a military certificate if he/she has served in his/her country’s military (needed only if you are processing abroad).

  While the labor certification is probably the most difficult part of this process, the paperwork and documentation for permanent residence are also rather involved. At the permanent residence application stage, the Immigration Service (or consular office) will be interested in whether the employee has (1) been a member of the Communist Party or similar groups, (2) been arrested or convicted of any crimes, (3) suffered any attacks of insanity, or (4) lied to obtain a visa, worked in the United States without permission, or failed to maintain status in the U.S. (if applicable), etc. Your attorney should go into more details about these as well as other factors that the Immigration Service looks to at the time they open your file. Most people who have been granted labor certification who apply for an immigrant visa outside the

Other Important Issues to be taken into consideration 

The PERM process may affect the immigration status of any employee on many different fronts. The following information is intended to inform you about possible issues that may arise. Note that the list below covers only few issues

. ·        If you are attempting to re-file a pending labor certification under the new “PERM” system, then please keep in mind that the application must be absolutely  identical in all respects, even in the address of proposed employment. If it is not, then the Department of Labor (DOL) will withdraw the earlier priority date and assign a new priority date. 

 o       If the employee is currently in H-1B status, a labor certification must be on file for 365 days before he or she may obtain a 7^th year extension of this H-1B status. If you are attempting to re-file under PERM, and the priority date is lost as mentioned above, then please keep in mind that the employee may not be able to have a 7^th year extension request filed on his or her behalf if the labor certification has not been pending for 365 days or more  by the end of the 6^th year in H-1B status (due to the loss of the priority date).  

o       Similarly, if  the employee had a labor certification filed before April 30, 2001 and plans to adjust his or her status to that of a lawful permanent resident pursuant to Immigration and Nationality Act (INA) Section 245(i), then loss of the priority date as mentioned above may result in his or her inability to adjust her status pursuant to INA § 245(i).  

 ·        Please note that upon approval of the labor certification and filing of the Form I-140 Immigrant Visa Petition, the employee will be required to prove that he or she has the education, experience and skills required by the position. 

 ·        The filing of a labor certification does not lock in the age of the employee’s child. Therefore, if the employee’s child is approaching 21 years of age, they may be able to lock in their age only upon the filing of a Form I-140, which can only be filed after the labor certification application is approved. If the employee’s child is approaching 21 years of age, please contact our office immediately.   ·        Please note that in every case, the employer is required to demonstrate their ability to pay the employee’s salary or wage from the date that the labor certification application was filed. For example, if the labor certification application was filed for an employee in 2005 with an offered salary of $50,000 per year, the employer must show that they had the ability to pay this salary since 2005 and up until the approval of the employee’s application for permanent residence. The employer may prove their ability to pay by showing that 1) their net taxable income as reported on their federal income tax returns has been higher than the salary since the labor certification was filed; 2) their net current assets as reported on their federal income tax returns has been higher than the salary  since the labor certification was filed; or 3) the employer has been paying the employee the proferred wage since the labor certification was filed.   We realize this process is very quite a daunting task and important to you. You need a knowledgeable immigration attorney in assist you in this process. Our office usually assists you at every step of the case to maximize your chance of success. We will do everything possible to make this lengthy process as easy on you as possible. In addition, our office has successfully processed a number of  PERM cases where we have even obtained approvals within 48 hours after submission of the applications. However, you should not expect every case to be approved within this timeline.