PERM PROCESS & EMPLOYMENT BASED GREEN CARDS

The PERM process is one of the ways a foreign worker can obtain lawful permanent residence (a green card) in the United States.

The first step in the process is for you to obtain a job offer from a U.S. employer. Your employer will be completing a labor certification through PERM on your behalf. The Labor Certification is necessary before you apply for an immigrant visa.

Prevailing Wage Determination (PWD) Request
The prevailing wage request provides the DOL with information about the position your employer is seeking to fill. Information includes job requirements, job duties, and the worksite location. The DOL uses this information to issue the employer a PWD, i.e. the prevailing wage for the specific job position in the specific worksite location. The U.S. requires employers pay foreign workers at least the prevailing wage for the worker’s position.

Recruiting
Your employer must conduct a “good faith” recruitment of willing and qualified U.S. workers. There are three mandatory advertisements.

1, Your employer must place an advertisement with the state workforce agency in the state of intended employment.

2. & 3. Your employer must place newspaper advertisements on two different Sundays. The newspaper must be the major newspaper of general circulation in the area of intended employment.

Additionally, your employer must also place three other advertisements and post a notice of the job opportunity at the worksite location.

Time periods for the recruiting is also critical. There must be a 30 day “quiet” period where the Employer actually reviews resumes and conducts interviews with potential U.S. workers. If there is one willing and qualified U.S. worker, the Labor Certification will not be approved.

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Filing ETA Form 9089
After the recruiting process is complete, and if your employer was not able to find a willing and qualified U.S. worker then your employer may file the PERM application with the DOL using ETA Form 9089. The Employer must be prepared to provide information on the employer’s recruitment process (such as where the employer placed the ads and on what dates), and information on the foreign worker (such as the worker’s place of birth, education credentials, and work experience).

After filing the ETA Form 9089, you will wait several months for the DOL to adjudicate the PERM. The DOL can (1) approve the PERM (2) deny the PERM or (3) audit the PERM. Your employer should be prepared to be audited by the DOL to prove the actual recruitment was conducted and be able to provide documentation of all interviews that were held and why U.S. applicants were disqualified from the job recruitment. There are some estimates that 50% of Labor Certifications are audited.

After your employer responds to the audit request, the DOL will review the new evidence and either approve or deny the PERM.

After receiving the approved PERM, you and your employer can move on to the next step of the process, which is filing an I-140 immigrant visa petition with U.S. Citizenship and Immigration Services. At this point, USCIS will determine what employment based category your visa petition falls under. Depending on what category and from what country you are from there may be different pay periods. Please check the visa bulletin to see if you may be subject to a wait period. Once the immigrant visa is approved and there are visa numbers available, you and qualifying dependents may now file for lawful permanent residence.

Not all employment based green cards are subject to the purposefully onerous PERM process. These include Aliens of Extraordinary Abilities and other National Interest Waiver employment, Religious workers, Multi-National Executives, and EB-5 visa applicants.

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