PERM-Based Green Card Process

Part 1:

U.S. immigration law requires, with limited exceptions, that individuals who desire to immigrate to this country through an offer of permanent employment must first, through the prospective employer, obtain clearance from the U.S. Department of Labor (“DOL”) before an immigrant visa petition (Form I-140) may be filed. This permission, based upon approval of a specific job offer, is called Labor Certification, Form ETA 9089.

U.S. immigration law assigns the responsibility of protecting U.S. jobs to the DOL. Most individuals intending to immigrate to the U.S. through employment must obtain an offer of permanent employment from an employer in the U.S.

The employer must file Form ETA 9089 with the DOL. The DOL will not certify Form ETA 9089 if is determined that there are U.S. workers who are able, willing and qualified to perform the duties of the permanent position offered to the applicant. The labor certification application will also be denied if the conditions of the job would have an adverse impact upon U.S. workers similarly employed.

Labor certification will be granted only when the position offered is full-time and permanent. If the position is temporary, it cannot form the basis for obtaining permanent labor certification.

The DOL uses the Program Electronic Review Management (“PERM”), for filing and processing labor certification applications. Under the system:

  • Applications are electronically filed and usually adjudicated within approximately four (4) months;
  • Employers are required to obtain a prevailing wage determination from the DOL for the permanent position offered to the applicant;
  • Employers are required to pay 100% of the prevailing wage at the time the application for Permanent Resident status (“green card”) is approved.

Pre-filing recruitment steps include:

  • Posting of a notice of the job opportunity for at least ten (10) consecutive business days. The notice period must be between 180 and 30 days before filing; and
  • Employer’s use of any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization; and
  • Placement of a job order with the State Workforce Agency (“SWA”) for a period of 30 days; and
  • Placement of two (2) advertisements on two (2) different Sundays in a newspaper of general circulation in the area of intended employment. The ads must be placed more than 30, but not more than 180 days before filing.

For professional jobs (requiring a Bachelor’s degree), use of three (3) additional recruitment steps from the following list is required:

  • Job fairs.
  • Employer’s web site.
  • Job search web site other than the employer’s.
  • On-campus recruiting.
  • Trade or professional organizations.
  • Private employment firms.
  • An employee referral program, if it includes identifiable incentives.
  • Notice of the job opening at a campus placement office, if the job requires a degree but no experience.
  • Local and ethnic newspapers, to the extent they are appropriate for the job opportunity.
  • Radio and television advertisements.

To “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States” the DOL:

  1. Prohibits substitution of beneficiaries;
  2. Mandates a 180-day validity period for approved labor certifications;
  3. Requires employers to pay the costs of labor certification, including preparing, filing, and obtaining certification; and
  4. Proscribes procedures for debarment from the permanent labor certification program.
Part 2:

After DOL has approved the PERM, all employers must complete and file an immigrant petition with the United States Citizenship and Immigration Services (“USCIS”) to seek classification for the individual in one of the immigrant visa categories controlled by quotas. The immigrant petition will be adjudicated by the USCIS at a Regional Service Center. The Regional Service Center makes its decision entirely on the record before it; it is impossible to discuss a petition and difficult to supplement it once it has been filed.

The Employment-Based Third Preference category is split into two subcategories: (1) skilled workers and professionals, and (2) unskilled other workers. The skilled workers and professionals subcategory includes individuals with offers to work in U.S. in jobs requiring two (2) years or more of post-secondary education, training and/or experience. The unskilled workers subcategory includes individuals in positions requiring less than two (2) years of experience, post-secondary education and/or training. A total of 30,000 visas per year are available to individuals immigrating in the skilled workers and professionals subcategory; only 10,000 visas per year are available in the unskilled workers subcategory.

Part 3:

If a visa number is available, the beneficiary may proceed to the final step, which is the actual application for green card status. This application may take the form of (1) an application to adjust status through USCIS, which may be filed concurrently with the immigrant petition mentioned above as long as an immigrant visa number is available or (2) an application for an immigrant visa, which must be filed and adjudicated (with a personal interview) by a U.S. consul outside the U.S. The choice of which path to follow is highly dependent on individual facts and circumstances.

Application to Adjust to Permanent Resident Status (Form I-485)

The Form I-485 Application to Adjust Status (“AOS”) and all supporting documentation is filed with USCIS along with the following documentation (including English translations of those documents issued in a foreign language):

  1. Complete copies of passports for each applicant (cover to cover, including blank pages);
  2. Copies of Forms I-94 for each applicant (front and back);
  3. Copies of drivers’ licenses (color copies if possible);
  4. Copies of marriage certificates;
  5. Copies of birth certificates including both parents’ names for each applicant;
  6. If previously married, proof of the termination of prior marriages;
  7. Letter from employer confirming continued offer of permanent employment; and
  8. Medical Exam completed by an approved USCIS physician. The results of the examination are returned to the applicant in a sealed envelope, and must be submitted to the USCIS unopened.

Supplemental Forms I-765 and I-131

Along with the AOS, an applicant may file Form (I-765) Application for Employment Authorization (“EAD”) and (I-131) Application for Travel Authorization (“Advance Parole”).

After the Advance Parole is issued, usually for multiple entries for a one-year period, it may be used to travel in and out of the U.S. in lieu of a visa stamp in the passport. After the EAD is issued, it can take the place of work authorization pursuant to a nonimmigrant employment-based visa. EADs may be valid for up to two (2) years if the priority date is not current at the time of issuance.

AOS applicants aged 14 and older will be required to attend a biometrics appointment. At the biometric appointment, applicants will be required to submit fingerprints and a photograph.

Consular Processing (Obtaining a Green Card at Home Consulate/Embassy)

Individuals not currently in the U.S. (or those who do not qualify for or choose not to adjust status in the U.S.) will need to apply for the green card through the U.S. embassy or consulate in their home country. This process is known as consular processing.

After the Form I-140 petition is approved, it will be transferred to the National Visa Center (“NVC”) which handles preliminary processing of the immigrant visa application and transfers the file to the U.S. embassy or consulate in the applicant’s home country so an interview can be scheduled when the visa number is current.

The principal applicant and any dependent family members return to their home country to complete a medical exam before the interview. Applicants should expect to be out of the country for approximately a minimum of one (1) to two (2) weeks to complete the medical exam and interview process.

Documents typically required for consular processing include the following:

  • Complete copies of passports for each applicant (cover to cover, including blank pages);
  • Copies of Forms I-94 for each applicant (front and back);
  • Copies of drivers’ licenses (color copies if possible);
  • Copies of marriage certificates;
  • Copies of birth certificates including both parents’ names for each applicant;
  • If previously married, proof of the termination of prior marriages; and
  • Letter from employer confirming continued offer of permanent employment.

Advantages of Advance Parole (“AP”) and Employment Authorization (“EAD”)

The Advance Parole document eliminates the need to obtain a visa while traveling outside of the U.S. This is an even more important advantage during times of lengthy delays in visa processing while awaiting the completion of security clearances at U.S. consulates.

With Advance Parole and an EAD, it is not necessary to extend H or L status, which can save significant fees.

Individuals are generally limited to a period of five (5) to seven (7) years in the U.S. depending on whether they hold H-1B, L-1A or L-1B nonimmigrant visa status. For those who choose to work on the EAD and relinquish H or L status, any remaining time in H or L status may be recaptured in the event that there are problems with the application to adjust status.

It is beneficial to obtain Advance Parole and an EAD just in case it is needed. Obtaining Advance Parole and an EAD does not prevent individuals from traveling with the H or L visa and obtaining some of the advantages that relate to such travel.

Advantages of Maintaining H or L Nonimmigrant Visa Status

Upon arrival at an airport or land port of entry, foreign nationals traveling with Advance Parole are usually referred to secondary inspection for review of their documents. This is less likely to occur to foreign nationals entering pursuant to valid H or L nonimmigrant visas. If an AOS is denied or for some reason abandoned, an individual will continue to have legal status following the denial or abandonment if maintaining H or L nonimmigrant visa status. Other applicants become removable from the United States.

For those who maintain H or L nonimmigrant visa status, they may extend that status while the AOS is pending. They may also work during the pendency of a timely filed petition for extension of stay. An adjustment applicant whose EAD expires is not able to work during the pendency of an EAD renewal application but instead must wait for approval of the new EAD.

For those who maintain H or L nonimmigrant visa status, they may travel immediately following the filing of the application to adjust status. Advance Parole application adjudications may be delayed three (3) or four (4) months, during which time an applicant is unable to travel internationally.

Part 4:

After an applicant is granted admission as a Lawful Permanent Resident (“LPR”), s/he has two primary rights: the right to remain in the U.S. permanently and possess unrestricted employment authorization. LPR status may be lost in a number of ways, the most common of which is the relinquishment of such status following an absence from the U.S. In the even an applicant is planning on being away from the U.S. for more than six (6) months, s/he should consider obtaining a Reentry Permit from the USCIS prior to departure.

A LPR may become a naturalized U.S. citizen and/or file immigrant visa petitions on behalf of other relatives. In general, a LPR may apply for status as a citizen after s/he has maintained LPR status for five (5) years, has been physically present in the U.S. for at least half of that time, and has not been absent from the U.S. for a continuous period of six (6) months or more during the five-year period. (The naturalization application may now be filed three (3) months prior to the five (5) year anniversary of becoming a LPR.) Please note that every applicant for naturalization must provide a list of all trips taken outside the U.S. since becoming a LPR. Therefore, a LPR should document the dates of travel and countries visited for every trip taken outside the U.S. if s/he plans to apply for naturalization in the future. A LPR may file petitions with the USCIS only on behalf of a spouse and/or unmarried sons and daughters. A U.S. citizen can also sponsor married sons and daughters as well as siblings.

PERM Process Flowchart

Step One
  • Establish the duties and absolute minimum requirements for the position.
  • Define the required experience, education, training, etc. without tailoring to the Foreign National employee.
Step Two
  • Gather documentation to show that Foreign National employee meets the defined minimum requirements.
  • Employee must have met requirements prior to working for sponsoring employer. Experience can be gained with sponsoring employer, but ONLY in a position that is “not substantially comparable.”
  • Documentation from Foreign National Employee includes academic credentials, licenses, certifications, and experience verification letters from former employees (MANDATORY).
  • Documentation from Sponsoring Employer includes Business Necessity evidence and information. Not Substantially Comparable information and affidavits, and industry expert letters, as applicable to each PERM case.
Step Three
  • Acquire a Prevailing Wage Determination (“PWD”) from DOL. The minimum wage level Is determined by referencing the position’s description (Step 1) and can take approx. 8-12 weeks.
Step Four
  • Recruitment must be done using 6-7 job posting methods per strict DOL regulations.
  • The ETA 9089 MUST be filed within 180 days of Day 1 of Recruitment.
  • The average Labor Market Test takes 2 -3 months to complete.
Step Five
  • Begin Step 5 during Step 4.
  • DOL requires that an employer promptly respond to any resumes gathered from recruitment to ensure that DOL considers the recruitment process valid.
  • Applicants should be reviewed and responded to within 2 weeks of receiving their resume during recruitment/Step 4.
  • It is strongly recommended that an attorney be consulted for this step due to how individualized each case is.
  • IF AN ABLE, WILLING, AVAILABLE, AND QUALIFIED U.S. WORKER IS FOUND DURING RECRUITMENT, THEN THE PERM CANNOT BE FILED AND MUST RESTART AT STEP 1.  [The only exception to this  rule  is if  the employer advertised “Multiple Openings.”]
Step Six
  • After drafted ETA 9089, Recruitment Report, and supporting documentation has been reviewed by the attorneys, the Foreign National employee, and the Sponsoring Employer, the PERM Application can be filed 30 days after Recruitment has finished.