GENERAL BACKGROUND

Foreign nationals are eligible to pursue permanent residency in the United States by having a sponsoring employer file an Application for Labor Certification, also known as a PERM (Program Electronic Review Management) Application, with the U.S. Department of Labor, using Form ETA 9089. Although this form may be submitted by mail, it is highly recommended to use the U.S. Department of Labor’s system for on-line filing of PERM applications.

There are three phases involved in obtaining U.S. Permanent Residency through this process:

1. Application for Alien Labor Certification (also known as PERM Application).
2. I-140 Immigrant Petition.
3. I-485 Application for Adjustment of Status (or Consular Processing).

The first phase involves the U.S. Department of Labor, the second phase the U.S. Citizenship and Immigration Service (“USCIS”) and the third either the USCIS or the U.S. Department of State.

PHASE ONE – THE PERM APPLICATION

A sponsoring employer files an application with the U.S. Department of Labor, essentially stating that it is not possible to find a qualified U.S. worker to fill a permanent position being offered to a foreign national, who has the qualifications to fill the position.

In order for the application to be approved, the employer is first required to undertake a process of recruitment to prove to the Department of Labor that there are no qualified U.S. workers available for the position.

REQUIRED RECRUITMENT FOR PERM APPLICATION

Following is a summary of the required recruitment steps in the preparation of a PERM Application.

Step One: Obtain a Prevailing Wage Determination from the State Workforce Agency (SWA) in the state where the foreign worker will be employed. A Prevailing Wage Request form, containing a description of the job duties and of the minimum requirements for the position is submitted to the SWA for review. The SWA will then respond with a Prevailing Wage Determination, stating the minimum acceptable salary that the sponsoring employer must offer to the foreign worker and to any U.S. worker who may apply for the position during the recruitment period.

Step Two: Conduct a Recruitment Campaign Consisting of the Following Steps:

1. Place an on-line Job Order with the State Workforce Agency for a period of 30 days.
2. Two Sunday print advertisements in an appropriate newspaper of general circulation in the location where the foreign national will be employed. This should be the newspaper with the largest circulation in the area where the where the job site is located. In the alternative, the employer may place one Sunday print advertisement in a newspaper and one advertisement in a trade publication or professional journal appropriate for the position that is being advertised.
3. Post a Job Opportunity Notice at the work site where the foreign national is, or will be, employed, for at least 10 consecutive business days. If the employer typically uses any sort of in-house media to advertise job opportunities, such as an employee newsletter or an Internet site accessible only to employees of the company, then the Posting Notice will also need to be posted in this media, with documentation of the posting.

If the position for which the foreign national is being sponsored for U.S. Permanent Residency is professional in nature, meaning one requiring at least a bachelors degree then three additional, documented recruitment efforts from the following ten are required from the employer:

• Job Fairs.
• Posting on the sponsoring employers' website.
• Posting on a job-related website other than that of the sponsoring employer.
• On-campus recruitment at colleges and universities.
• Advertisement in trade or professional journals.
• Recruitment efforts by private employment firms.
• An employee bonus referral program offered by the sponsoring employer.
• Campus Placement Office (distinguished from on-campus recruitment).
• Advertisement in a local and/or ethnic newspaper in the local area where the foreign national is or will be employed (other than, and in addition to, the newspaper of general circulation referred to above).
• Radio or television advertisements.

After the recruitment steps have been completed, there is a waiting period of 30 days from the ending date of the last recruitment effort to see if able, willing, and qualified U.S. workers are available and for the employer to schedule interviews with any U.S. worker applicants who may be qualified for the position. Of the three out of ten recruiting methods chosen above, one of them may take place within this 30-day waiting period.” All aspects of the recruitment process must be conducted and completed no less than 60 days, and no more than 180 days, prior to the filing date of the PERM Application.

During the recruitment process, a written record must be made and kept in the employer’s files, for five years, of the specific job-related reasons for rejecting any U.S. workers who applied for the position. Any resumes from unqualified applicants must also be kept on file for five years in the employer's records.

Step Three: Once the above steps are completed, the Application for Labor Certification can be filed either on-line or by mail. If the case is eligible for certification without an audit or responses to requests for evidence, the certification (approval) will be issued by the U.S. Department of Labor and mailed to the employer or the employer’s attorney. If the Department of Labor believes that the case may not be certifiable, it will send an audit letter to the employer or the attorney, requesting additional information and/or documents, and providing the sponsoring employer with 30 days in which to file the required response.

PHASE TWO – THE IMMIGRANT PETITION

Once the Application for Labor Certification is approved, the employer files the following items with the Immigration and Naturalization Service: the approved application, an Immigrant Petition for Alien Worker on USCIS Form I-140, and supporting documentation establishing the foreign national's qualifications and the employer's ability to pay the offered salary.

At the same time that the I-140 immigrant petition is filed, the foreign national may file an I-485 Application to Adjust Status to Permanent Residence with the USCIS, if eligible to do so. Whether the foreign national is eligible to file the I-485 Application at the same time as the I-140 Immigrant Petition will depend on factors such as whether the foreign national has not had more than 180 days of being in the United States illegally or engaging in unauthorized employment.

The foreign national will also need to have a current immigrant visa priority date in order to be eligible to adjust status. The foreign national’s immigrant visa priority date is established on the date that the Application for Labor Certification is filed with the U.S. Department of Labor. In addition, depending on the employer’s minimum qualifications for the position when filing the Application for Labor Certification, the I-140 Immigrant Petition for this type of case will usually be classified as EB-2 (Employment-Based Second Priority) or EB-3 (Employment-Based Third Priority).

Whether the foreign national’s case is classified as EB-2 or EB-3, and whether the foreign national is from certain countries (such as India or China) will determine whether the visa priority date is current, and the I-485 Application can be filed immediately, or whether there will be a waiting period, and how long that waiting period will be, between the date that the employer’s I-140 Immigrant Petition and the foreign national’s I-485 Application will be filed.

Visa priority dates are updated on a monthly basis by the U.S. Department of State in its monthly online Visa Bulletins.

PHASE THREE – ADJUSTMENT OF STATUS (OR CONSULAR PROCESSING)

Once the I-485 Application to Adjust Status to Permanent Residency is filed with the USCIS, the foreign national is considered to be in legal status as an "applicant to adjust status." This is also known as the foreign national being “in adjustment.” The application consists of filing some additional forms and documents with the USCIS, including passport photos of the foreign national and the sealed results of a medical examination. A separate I-485 Application to Adjust Status must be filed for each eligible immediate family member (spouse and children under the age of twenty-one).

Once the application has been filed with the USCIS, it can take a year or longer, depending on USCIS backlogs, for the application to be approved and for the foreign national to become a U.S. Permanent Resident. In some cases, before approving the I-485 Application, the USCIS may decide to schedule an interview for the foreign national at the local office of the USCIS serving the location where the foreign national resides.

In the meantime, while waiting for the I-485 Application to be processed, if the foreign national does not already have employment authorization in the United States, through a nonimmigrant visa or some other means, he or she may simultaneously apply for and receive employment authorization well before actually receiving permanent residency, by filing a Form I-765 Application for Employment Authorization together with the I-485 Application. Under federal regulations, the USCIS is required to process I-765 Applications within 90 days of receiving them.

Furthermore, if the USCIS has already approved the I-140 Immigrant Petition, but has not yet completed its processing of the I-485 Application for Adjustment of Status within 180 days of receiving it, then the foreign national may change employers and still remain eligible for U.S. Permanent Residency, if the new job is in the same occupational classification as the one for which the original employer sponsored the him or her for Alien Labor Certification.

During the time that the I-485 Application to Adjust Status is pending, the foreign national may not leave the United States without first applying to the USCIS for permission to do so. The document permitting the foreign national who is in adjustment to re-enter the United States after foreign travel is known as an "Advance Parole" document. It is applied for using USCIS Form I-131, which can be filed with the USCIS at the same time as the I-485 Application and I-765 Application.

However, there are some important exceptions to the need for an Advance Parole document. If the foreign national has a valid un-expired H-1B, L-1B, or L-1A visa in his or her passport and continues to be employed by the company that sponsored him or her for the H-1B, L-1B, or L-1A visa, then the foreign national can re-enter the United States using that classification of visa, without needing to use an Advance Parole document. This exception to the requirement of having an Advance Parole document to re-enter the United States after foreign travel also applies to spouses and children under 21 of H-1B, L-1B, and L-1A visa holders who have unexpired H-4 or L-2 visas in their passports.

Upon final approval by the USCIS of the I-485 Application for Adjustment of Status, the USCIS will issue an Approval Notice, also known as a Welcome Notice, to the foreign national. Either at the same time, or shortly afterwards, the foreign national should receive a Permanent Resident Card, popularly known as a “Green Card” in the mail. If the foreign national is required to attend a USCIS interview, the USCIS officer who approves the case at the interview may enter a stamp into the foreign national's passport, valid for one year, verifying that he or she has become a permanent resident of the United States on the date of the interview. This will serve as temporary evidence of U.S. Permanent Residency, until the foreign national receives the Permanent Resident Card in the mail, which is usually within a few weeks of the final interview.

CONSULAR PROCESSING

In some cases, it may be necessary or desirable to use an alternative method of finalizing the process of obtaining permanent residency, once the USCIS Form I-140 Immigrant Petition has been approved. In these cases, the I-140 petition will have been filed alone, without the accompanying I-485 Application. This alternative method is known as "Consular Processing" and involves completing the process of obtaining U.S. Permanent Residency through the U.S. Department of State. In consular processing, the interview for an immigrant visa takes place at a U.S. embassy or consulate located (with some exceptions) in the foreign national’s country of citizenship.

The entire process of obtaining U.S. Permanent Residency using this procedure can be lengthy, due to considerable backlogs at both the Department of Labor and at the U.S. Citizenship and Immigration Services ("USCIS"). Processing times vary a great deal, and can take two to three years to complete. Please contact us for additional information.

DISCLAIMER

The foregoing article is provided for general informational purposes only. It is not intended to replace detailed and specific legal advice in individual cases and should not be acted upon as such. The author does not assume responsibility for any loss incurred by a person who pursues, or refrains from pursuing, a course of action in reliance upon the information provided in this article.

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