Obtaining Lawful Permanent Residence through Employment Sponsorship
Overview
Obtaining a Labor Certification from the Department of Labor (DOL) is the first step of the Employment Based Permanent Residence sponsorship process. DOL regulations govern this step of the process, which is generally referred to as PERM. The PERM regulations require that prior to submitting the Labor Certification Application the employer must fulfill specific requirements in order to show that there indeed is a position opening which the employer sponsor is unable to fill with U.S. workers. The employer sponsor must show that employing the alien will not detrimentally affect the job market, and that no qualified U.S. worker applicants are available. This entails drafting an acceptable job description, obtaining the prevailing wage from the Department of Labor, completing a recruitment process, reviewing applicant resumes, and performing applicant interviews, if needed. The entire recruitment process must take place within 180 days prior to submitting the Labor Certification Application. All recruitment efforts must be completed 30 days prior to the actual date of submitting the Labor Certification Application. This means that the recruitment process really needs to be completed within 150 days of the date on which the first recruitment effort began.
Job Description
The job description of the position the alien is sponsored for must be acceptable to the DOL. The DOL uses an occupation information database called O*NET as the standard by which sponsored positions are measured. To be acceptable, the position must conform to or resemble an occupation listed in O*NET. Several aspects are taken into consideration when determining the proper job description, including the required education, the required years of experience, and specific duties.
Prevailing Wage
Once an acceptable job description has been agreed upon, the next step is to obtain wage determination (PWD) from the federal Department of Labor via an on-line portal. The PWD establishes the minimum wage the employer will have to pay the alien once the alien obtains permanent resident status, often referred to as the “green card.”
Recruitment Process
The types of recruitment required under PERM regulations depend on the type of position for which the alien is sponsored. The basic recruitment process for positions consists of posting a job order with the state workforce agency where the position is available, placing newspaper advertisements, and posting a notice on the job site. If the sponsored position is considered a professional position, then three additional recruitment efforts are required. The PERM regulations provide a list of options from which to choose from for these additional recruitment efforts. The position is considered professional if it requires a bachelor’s degree or a more advanced degree, as adjudicated by the Department of Labor.
The recruitment process also entails reviewing any applicants who respond to the advertisements. Each applicant must be reviewed to determine whether the application qualifies or may qualify for the position. If an applicant appears to qualify, then the employer must contact the applicant for an interview to determine whether the applicant truly qualifies and is actually interested. These interviews an be conducted over the telephone. All applicants, if determined not to qualify, must be disqualified for lawful reasons. These reasons include not meeting the minimum requirements for the positions, unavailability, disinterest, poor or unverifiable references, etc.
Employer Petition Process with the Immigration Service
Once the Department of Labor certifies the application, the next step for the employer sponsor is the submit an Immigrant Petition on behalf of the prospective employee. The petition is filed with the Citizenship and Immigration Service. Along with the petition, the employer sponsor must submit copies of most recent federal income tax returns of the company to demonstrate it’s ability to pay the prevailing wage for the position. The employer sponsor must show that it has enough net income or net current assets to pay the future wage offered to the prospective employee. The tax returns remain confidential and are not released to the sponsored employee.
Application for Permanent Residence
After the Immigration Service approves the immigrant petition of the employer sponsor, the prospective employee submits an application for permanent residence and permission to work. This is the actual so-called application for a green card. At this stage, most of the documents are completed by the prospective employee and the employer sponsor has a very limited role. This is the final stage in the sponsorship process, and once, completed successfully, the sponsored employee obtains his green card and he becomes a lawful permanent resident of the United States and is able to commence employment in the field for which he or she was sponsored.