THE PERM APPLICATION PROCESS
STANDARD EMPLOYMENT SPONSORED GREEN CARD PROCESS
Summary: There are several ways of applying for US permanent residence (or "green card" status). The most common employment-based method is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers. As of March 28, 2005, all labor certification applications must be filed in accordance with the Department of Labor's (DOL's) newly issued PERM regulation.
The PERM (Program Electronic Review Management) is the standard process for obtaining Green Cards through employer sponsorship. The PERM process is facilitated through the U.S. Department of Labor. Applications for PERM are submitted electronically once the employer has taken certain designated recruitment steps and followed the procedures necessary to establish that an American worker is not readily available for a particular job.
There are certain BASIC requirements for all PERM applications. They are as follows
- FULL-TIME EMPLOYEE The employer must hire the foreign worker as a full-time employee, not part-time.
- PERMANENT POSITION The employer must be offering a permanent position. Temporary or seasonal positions do not qualify for labor certification. (The positions of Medical Resident or Medical Fellow may NOT be considered as PERMANENT positions, as they are limited in duration - be CAREFUL about applying for PERM certification on the basis of a residency/fellowship position - we do not recommend it)
- STANDARD/REASONABLE JOB REQUIREMENTS The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed.
- WAGE OFFER MUST BE AT LEAST THE PREVAILING WAGE FOR THE POSITION. The employer must pay at least the "prevailing" wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. The prevailing wage is obtained from the particular STATE Dept. of Labor, in the State of intended employment.
- THE ALIEN MUST MEET THE QUALIFICATIONS OF THE POSITION PRIOR TO THE TIME OF APPLICATION. For example, if the offered position is that of INTERNAL MEDICINE PHYSICIAN, and the alien is in the midst of his/her residency, he/she does NOT yet qualify for PERM application. Instead, he/she must wait until completion of residency to file.
PERM applications are filed by employers on behalf of their physician / scientist employees. The PERM process involves only the US Dept. of Labor. Once certified by the US Dept. of Labor, an appropriate immigrant visa petition (EB2) may be submitted to the US Immigration Service.
US Dept. of Labor regulations require that the employer cover any fees associated with proceeding with a PERM Green Card applications. Hence, the individual physician or scientists is not legally able to pay for the costs of this process.
Our Experience: We typically prepare and file more than 400 PERM applications each year.
The Visa Queue. For physicians and scientists, the basis for the PERM filing is EB2. Hence, visa queues may exist for individuals from India, China, Mexico and the Philippines. Please see the current visa bulletin information on the home page for information as to whether a visa queue presently exists. If you are subject to a visa queue based on your country of birth, actual issuance of your Green Card may be delayed a few years. Even if you are subject to a visa queue, this category may be the suggested category in which to apply for a US Green Card. It may be worth the wait!
To Proceed Further If you are interested in obtaining more information about standard Green Card processing through PERM, kindly contact us.
Frequently Asked Questions About PERM Application Process
Under PERM labor certification, the U.S. Dept. of Labor (DOL) is wholly responsible for the review and adjudication of labor certification applications, and the State Workforce Agencies are no longer involved in the review process. Preparation of the labor certification application package, even under PERM, will remain complex and will take more preparation time than the typical nonimmigrant (H or L) petition. When complete, the labor certification application will be submitted electronically to a national DOL processing center. Electronic filing should greatly reduce the number of reoccurring backlogs in the queue, resulting in much shorter processing times. The date of submission of the online form will serve as the priority date for the entire permanent residency process (i.e., one's place in the green card queue).
The DOL will carefully review the labor certification application for completeness and adequacy. The DOL may perform an audit of the application and request that documentation of the application be submitted. The online system may randomly select cases for audit as well. When review is complete, the DOL will either issue its approval or other decision based on the merits of the application. Approved applications will be returned to attorneys handling the case, and both the employer and the employee will be required to sign the approved application before it can be used in the second stage of the process.
I-140 Immigrant Petition
Once the labor certification application is certified, it provides the basis for the company to move to the second stage of the process and file an I-140 immigrant petition with the US Citizenship and Immigration Service (CIS). We prepares the I-140 and supporting documentation for the company. CIS determines the "immigrant category" of the case and adjudicates the I-140 petition; the processing times vary depending on the service center jurisdiction.
I-485 Application for Adjustment of Status to Permanent Residence (time frame: 1-3 years)
The I-140 petition provides the basis for the employee's I-485 application for adjustment of status (AOS) to permanent residence., The employee, along with his/her dependents, can file his or her I-485 application with the I-140 or after the I-140 is filed, as long as his or her "priority date" is current, "Priority dates" are the queuing system for cases under an immigrant quota. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The US Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
A 'C' on the charts in the middle of the bulletin means that the category is "current" and there is no need for applicants born in that country to wait to file an AOS application. If a date is indicated, a person born in that country (with certain exceptions) must wait to file the AOS application if his or her priority date is not current (i.e. his or her labor certification was filed after that date).
Along with the AOS application, we will also file requests for travel permission (advance parole) and employment authorization for the employee and dependents. Once the advance parole application is approved, the employee and dependents will be able to travel outside the United States even if they do not have valid nonimmigrant status. Once the employment authorization document (EAD) is approved, the employee's dependents will be authorized to work in the United States. With the approval of the AOS application, the employee and dependents become US permanent residents and green cards are issued to them through the mail.
STAGE 1: Labor Certification (Department of Labor)
- Employee's information and documents are reviewed and organized.
- Attorney performs legal analysis and develops case strategy.
- First draft of job notice (job title, duties and requirements) is sent to employee and employer for approval.
- We exchange drafts and consult with the employee and employer until the final job notice is agreed upon.
Once the job notice is approved,
- Obtain job/wage classification from SWA (State Workforce Agency) (about 1 week).
- Obtain evaluation of academic degree (if necessary).
- Initiate internal company posting and obtain confirmation (3 weeks).
- Employer conducts recruitment (30 days must expire after the required requirement before the application can be filed).
- There are two main steps in the recruitment efforts:
The employer must use 3 additional recruitment steps from a list of 10 alternatives provided by the PERM regulations. These include:
- Mandatory step
- Employer must place a job order with the SWA for a period of 30 days, AND
- Two print advertisements must be placed on two different Sundays in a paper of general circulation. If the job offer requires experience and an advanced degree, and a professional journal would normally be used to advertise the job opportunity, the employer may place an advertisement in the professional journal in lieu of one of the Sunday advertisement.
- Recruitment steps must be taken at least 30 days, but no more than 180 DAYS, before the filing of the application.
- Additional recruitment steps
- Job fairs;
- Employer's website;
- Job search website other than the employer's;
- Trade or professional organizations/publications;
- Private employment firms;
- Employee referral programs with incentives;
- Campus placement offices (While the preamble limits this to opportunities that require a degree but no experience, the final regulations are silent on this point);
- Local and ethnic newspapers (The preamble limits this "to the extent they are appropriate for the job opportunity."); and
- Radio and television advertisements.
- Employer provides recruitment results to us
- We assemble recruitment documentation package to be maintained according to PERM.
- Help employee draft and obtain reference letters.
- Prepare final form for employee and company.
- Prepare company's recruitment letter.· Final check of all documents and letters.
- Labor certification application form is filed with DOL.
DOL (Department of Labor)
- DOL reviews and adjudicates the labor certification
- If approved, DOL returns the application to be signed by the employer and the employee
STAGE 2: Company I-140 Petition (CIS)
Once the labor certification is approved, we will:
- Prepare forms for company.
- Prepare company's employment letter.
- Obtain final forms and letter signed by company.
- Final check of all documents, forms, and letters.
- I-140 application is filed with CIS.
- CIS examines position requirements, determines if applicant meets all requirements, and assigns applicant a preference category.
- I-140 application is adjudicated by CIS.
STAGE 3: Employee I-485 Adjustment of Status Application (CIS)
- If not eligible to file with the I-140, priority dates of cases subject to quota will have to be tracked.
Once an employee has a current priority date, We will:
- Provide final advice to employee to gather required documents and medical exam.
- Prepare final forms for employee and company.
- Get final forms signed by employee.
- Assemble package with all documentation.
- Final check of all documents, forms, and letters.
- File I-485 and requests for advance parole and employment authorization documents.
Advance Parole (AP - travel permission)
- AP (advance parole) approved and received.
- Employee and dependents can now travel outside the US
Employment Authorization Document (EAD)
- EADs approved and received for employee and dependents.
- Employee's dependents are now authorized to work in the United States
- Employee and dependents are now permanent residents
3. Is PERM useful for physicians and scientists who may otherwise qualify for EB1, EB2-NIW or other priority Green Card categories?
Yes, at least as a back-up. For physicians/scientists who qualify for EB1, EB2-NIW processing, applications for the US Green Card are submitted directly to the U.S. Immigration Service. The Dept. of Labor is bypassed completely. However, there are often restrictions and stringent requirements for both of these categories processing which do not exist under PERM. Therefore, it is even possible that PERM could become quite useful to many physicians/scientists whose employers are willing to undertake the prior recruiting efforts.
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4. Do I need to be working for the employer who agrees to sponsor PERM for me?
No. So long as you meet the qualifications for the offered position, you can be sponsored by a different employer for PERM processing.
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5. What about audits and denials?
As to audits, the U.S. Dept. of Labor does indeed randomly audit applications submitted for PERM labor certification. Such audits require that the employer forward documentary evidence of all recruitment steps directly to the US Dept. of Labor. Audits often delay PERM certification by 12-14 months. In our experience, audits have been occurring in about 5% of cases submitted.
As to denials, due to the shortage of physicians and scientists in the United States, we have experienced very few PERM denials.
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6. How can the attorneys MDgreencard.com help me in this process?
PERM processing is a very complicated and involved process, and we have substantial experience and expertise in this regard. Our success rate is over 95%.
We will insure that the PERM application is timely and properly filed.
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