There are generally three steps an employer must take to sponsor an employee for permanent residency:
After the employer receives notice that its Form I-140 has been approved, the next and final step is for the foreign national to file Form I-485, Application to Register Permanent Residence or Adjust Status. When the employee's Form I-485 is approved, the employee will be issued a permanent resident card, commonly referred to as a green card.
Before filing an ETA Form 9089, Application for Permanent Labor Certification, there are several actions an employer must take. For example, the employer must obtain a prevailing wage determination from a state workforce agency (SWA), and the employer must also conduct recruitment according to strict technical guidelines issued by the U.S. Department of Labor.
The employer must offer the foreign national 100 percent of the prevailing wage for the position. The employer must obtain a prevailing wage determination from the SWA that has jurisdiction over the proposed place of employment. The information provided by the SWA must be included on the PERM labor certification application the employer files with the U.S. Department of Labor.
If the employer disagrees with the SWA's prevailing wage determination, it may provide a public or private wage survey or its own wage survey for the position. The wage survey provided by the employer must be accepted by the SWA. If the SWA does not accept the employer's wage survey, the employer may appeal the SWA's prevailing wage determine to a U.S. Department of Labor Certifying Officer (CO). Decisions of the CO may be appealed to the Board of Alien Labor Certification Appeals (BALCA).
Before filing an ETA Form 9089, Application for Permanent Labor Certification, the employer is required to recruit for the position it seeks to hire the foreign national for. Recruitment requirements differ for "Professional" and "Nonprofessional" occupations.
Recruitment for a professional position requires that the employer:
Although the employer is not required to submit recruitment results with its PERM labor certification application, the employer must retain documentation of its recruitment efforts for five years from the date the PERM labor certification application is filed. All documentation must be retained.
Generally, an employer must demonstrate to the U.S. Department of Labor that the position the employer seeks to fill with the foreign national is one for which there are not sufficient qualified U.S. workers. The employer must also show that its employment of the foreign national will not adversely affect the wages of similarly employed workers in the U.S. The process of making these demonstrations to the U.S. Department of Labor is referred to as applying for PERM labor certification.
To apply for PERM labor certification, employers must use the U.S. Department of Labor's PERM system. Under the PERM system, labor certification applications may be submitted through the mail or electronically. However, the U.S. Department of Labor highly recommends that all employers submit their applications electronically. Employers must access the U.S. Department of Labor's Permanent Online System to register and set up an account. The U.S. Department of Labor requires that employers take this step on their own. An attorney cannot set up an employer's PERM account.
The PERM system will try to verify the existence of any employer attempting to register. If the system cannot verify the employer's existence, the U.S. Department of Labor will ask the employer to supply additional information to verify existence.
The PERM system will create a Personal Identification Number (PIN) number for the employer only. The employer will then be allowed to create sub-accounts for its attorney(s). The attorney may then log-in to the employer's sub-account to complete and submit applications on behalf of the employer.
A CO will review the employer's PERM labor certification application and certify or deny it. Unless the PERM labor certification application is selected for audit by the U.S. Department of Labor, employers who submit their applications electronically through the PERM system can expect to receive a decision within three months of the date the application was filed.
If the employer wants to appeal the CO's decision, the employer must request a review by BALCA within 30 days of the CO's decision.
Once the employer receives notice that the PERM labor certification application has been approved, it must file Form I-140, Petition for Alien Worker, with the Bureau of U.S. Citizenship and Immigration Services within six months. The employee may file an I-485 Adjustment of Status Application at the same time the employer submits the I-140 Petition. However, due to visa retrogression, this is not always possible, and the employee will have to wait to file his or her I-485 Adjustment of Status Application until the employee's priority date becomes current. An employee's priority date is the date the employer's PERM labor certification application was filed. In cases where traditional labor certification was not necessary, an employee's priority date is the date the employer files the I-140 Petition.
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