EMPLOYMENT BASED IMMIGRATION
Most employment based immigration requires an applicant to be sponsored by a specific employer who will actually employ the immigrant after permanent residence is issued. It requires a Permanent Employment Certification (also known as an Alien Employment Certification, a Labor Certification or a Labor Clearance) from the US Department of Labor. Obtaining permanent residence this way can be quite complicated. A general summary of the process is described below:
STEP 1-Application for Permanent Employment Certification
This is a process to determine whether there is a shortage of workers already in the US labor market who are able and willing to perform the job in question and whether admitting a foreign worker to fill the position will harm US workers.
Backlog Reduction and National Processing: The US Department of Labor has implemented national processing of the labor certification process and eliminated the state workforce agencies from almost all parts of the process. All filings under the new PERM regulation discussed below are processed by one of two national processing centers. Cases which have already been filed under the old rules and which are currently caught in the national backlog have been transferred to one of two national backlog elimination centers.
PERM Processing: The PERM is a newer method of processing labor certification applications. Since March 28, 2005, all new labor certification applications have been required to be filed under the PERM rules.
The process is started generally by determining the job duties, the required minimum wage level and the job requirements which the employer has before it is willing to hire a worker to fill the position. There are extensive rules about what is allowed and what is not allowed both in terms of job duties, required wage level, and job requirements. In most cases, the immigrant must have had the required education and experience prior to beginning employment with the sponsoring employer.
Once the job description, wage level and requirements are drafted, recruitment is conducted to see if there are any qualified, willing, and able US workers to fill the job position. Notice to the sponsor’s existing workers must also be provided. A report is then put together explaining what recruitment efforts were undertaken and the results of the recruitment. A complex compliance file must also be created showing compliance with the PERM rules. Finally, the application forms are put together and filed with the US Department of Labor.
The application can be filed over the internet or by mail. Certain cases will be chosen for auditing by the Department of Labor and will face heightened scrutiny, possibly involving production of the entire records file by the sponsoring employer. Cases which are not chosen for audit are generally decided in only a few months.
Generally, if anyone in the permanent US labor market who is qualified applies for the job and wants it, the permanent employment certification application will not be approved. It will be denied even if there are no such US workers in the event it is determined that the employer has not complied with the complex PERM regulatory requirements. Winning a case under the new PERM rules can often be more difficult than it was under the old rules, thus making it more difficult to obtain employment based immigration.
Step 2-I-140 Visa Petition
If a permanent employment certification application is approved, the second step is filing by the employer of an I-140 immigrant visa petition with the USCIS. In addition to the petition form, the employer must usually prove the following:
a) That the Permanent Employment Certification was approved;
b) That the employee met the minimum qualifications which were stated on the Permanent Employment Certification application and which were required of US workers before the employee began employment with the sponsoring employer; and
c) That the sponsoring employer has the financial ability to pay the salary offered on the Permanent Employment Certification application as of the date that application was filed and continuing through the filing of the visa petition. Failing to prove the ability of the sponsoring employer to pay the required salary from the time of filing the Permanent Employment Certification application is one of the most common reasons for denial of I-140 visa petitions.
Step 3-Consular Processing or Adjustment of Status
After the I-140 visa petition is approved and a visa becomes available from the visa quota waiting list (if any) the immigrant either applies for an immigrant visa in the home country at an American Consulate or Embassy (riskier, but quicker), or applies here in the US with the USCIS for adjustment of status to permanent residence (takes longer, but is safer). Not everyone is eligible for adjustment of status in the US and some people who have been out of status in the US may have problems returning if they apply at home for consular processing. The facts of each case need to be carefully considered before applying. Spouses and unmarried minor children, if any, would also be able to apply for permanent residence during or after the last step.
If adjustment of status will be applied for instead of consular processing, step 2 (the I-140 visa petition) and step 3 (the adjustment of status application) can be applied for at the same time if there is no visa waiting list for the applicable visa category. This is known as “concurrent filing” and can cut out some of the processing time, but carries with it certain other risks. An immigrant’s place on the visa quota waiting list is the date his or her Permanent Employment Certification Application was filed.
An immigrant who is obtaining permanent residence based on employment is advised to begin working for the sponsoring employer on the payroll at the required wage level as soon as employment authorization is obtained. Otherwise, the government may not believe when it comes time to decide the case that the the job offer on which the permanent residence is based is genuine.