A vast number of foreign workers who wish to become Lawful Permanent Residents of the United States obtains sponsorship from United States employers through offers of full-time, permanent employments. This type of employment-based immigration involves a three-step process, outlined below.
Step One: PERM Application
PERM Application is an application for permanent employment certification needed by a U.S. employer who wishes to hire foreign workers permanently. The application is filed by a U.S. employer with the Department of Labor, and it can be filed electronically or by mail. The Department of Labor, through the Employment and Training Administration, must determine that there are no able, willing, qualified, and available U.S. workers and that the employment of the foreign worker will not adversely affect the wages and conditions of similarly employed U.S. worker before certifying a PERM Application.
The processing of a PERM Application begins with a Prevailing Wage Determination for the proffered position. A Prevailing Wage Request must be made to the Department of Labor. The Department of Labor will then issue a determination based on the occupational classification of the position and the geographical location of the proposed permanent employment. The employer is required to compensate the employee no less than the prevailing wage rate as indicated in the determination.
Before a PERM Application can be filed, an employer is required to conduct recruitment. If the application is for a professional occupation, the employer is generally required to conduct two mandatory recruitment steps and three additional recruitment steps within 6 months of filing of the PERM Application. The two mandatory recruitment steps are placement of a job order at a State Workforce Agency and two print advertisements in newspaper of general circulation appropriate for the occupation. They must be conducted at least 30 days but no more than 180 days before filing the PERM Application. The other three additional steps can be selected from the following:
• Job fairs
• Employer’s website
• Job search website other than the employer’s
• On-campus recruiting
• Trade/professional organization
• Private employment firms
• Employee referral program with incentives
• Campus placement offices
• Local and ethnic newspapers
• Radio and television advertisements
If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order with the State Workforce Agency and two newspaper advertisements within 6 months of the filing of the PERM Application. These steps must be conducted at least 30 days but no more than 180 days before filing the PERM Application.
The employer must review the applications of all U.S. applicants in good faith. The employer may file a PERM Application for a foreign worker only if there is insufficient or no able, willing, qualified, and available U.S. worker to fill the position. A PERM Application can be filed electronically or by mail. The Department of Labor processes PERM Applications on a first-in-first-out basis, and there is no expedite processing available for this type of application. A certified PERM Application is valid for 180 days. The employer must file an I-140 petition within the validity period of the certified PERM Application
Step Two: I-140 Petition
An I-140 Petition is an immigrant petition for alien worker. It is an employer’s petition filed with the United States Citizenship and Immigration Services. The petition must establish that the foreign worker meets the minimum requirements of the position of the certified PERM Application. The petition must also establish that the petitioning employer has the ability to pay the proffered wage as of the date the labor certification application was filed.
It is at the I-140 stage that the EB classification is designated. Common employment-based immigration classifications are EB-2 (Employment-Based Immigration Second Preference) and EB-3 (Employment-Based Immigration Third Preference) categories.
EB-2 is for member of professions with advanced degree. For a foreign worker to qualify as an EB-2, the proffered job must require an advanced degree and the worker must possess such a degree or its equivalent. A bachelor’s degree plus 5 years of progressive work experience in the field will be deemed equivalent of an advanced degree.
EB-3 is for Skilled Worker, Professional, or Other Worker. To qualify as a Skilled Worker, the proffered job must require a minimum of 2 years of training or work experience and the foreign worker must possess such experience. To qualify as a Professional, the proffered job must require at least a U.S. baccalaureate degree or a foreign equivalent and the foreign worker is a member of the profession holding such a baccalaureate degree. The Other Worker is for person performing unskilled labor requiring less than 2 years of training or work experience.
Step Three: Adjustment of Status Application or Consular Immigrant Visa Application
The Priority Date of the foreign worker determines when the worker would be eligible to progress on to Step Three of the employment-based immigration. The foreign worker’s Priority Date is the date that a PERM Application was filed for his benefit. When the Visa Bulletin, published monthly by the U.S. Department of State, shows that the Priority Date becomes Current for the foreign worker, such worker is eligible to move on to this step. If the worker is inside the United States and is eligible to adjust status, the worker can file an Adjustment of Status Application with the U.S. Citizenship and Immigration Services. The Adjustment of Status Application is made on Form I-485. Spouse and children of the worker may also apply as derivative applicants. Approval of an Adjustment of Status Application means the foreign worker is granted a Lawful Permanent Resident status in the United States.
Consular Immigrant Visa Application refers to a process to apply for an immigrant visa with a consular officer at a U.S. Embassy or Consulate when the worker is outside of the United States or is ineligible to apply for an Adjustment of Status Application inside the U.S. After USCIS approves the I-140 petition (Step Two), USCIS forwards the petition to the National Visa Center for immigrant visa pre-processing. When the Priority Date becomes current or is likely to become current soon, The National Visa Center will process the application by invoicing for the visa application fees and collect application and supporting document from the worker. The National Visa Center will then forward the petition and documents to a U.S. Embassy or Consulate where an interview for an immigrant visa is scheduled for the worker. An issuance of an immigrant visa by a United States Consulate means the visa holder may seek to enter the United States as an immigrant. Upon arrival, the visa holder will hold the status of a Lawful Permanent Resident of the United States.
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