In this comment, Magdalena Cuprys, Esq.
addresses and explains the employment-based Green Card through the so-called
PERM process
In the third
article of her series of Instructional Articles, Florida Attorney Magdalena Cuprys
comments on how to obtain a Green Card (“permanent residence”) through
employment in the U.S. This is a highly complicated process, which many
exceptions and special rules. Thus, this article can only provide a general
explanation of the process. Specific issues should be discussed with a
qualified attorney based on the facts and circumstances of a specific case.
WHAT
IS “Program Electronic Review
Management process” (PERM)?
For
most people seeking permanent residency (Green Card) in the USA through
employment, PERM labor certification through the U.S. Department of Labor is
the first step in the process. In a nutshell, PERM is a process whereby an
employer who is interested in hiring a foreign worker, places job
advertisements to test the U.S. labor market. If no interested or qualified
U.S. worker responds, the U.S. Department of Labor certifies that result. With
that, the employer can petition a Green Card for the foreign employee.
This
article is based in large part on the “OFLC Frequently Asked Questions and
Answers” on the U.S. Department of Labor, Employment & Training
Administration’s Website: https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm.
On
March 28, 2005, the new Labor Certification for the Permanent Employment of
Aliens in the United States (PERM) became effective. Under this system, labor
certification are based on the following standards:
*
whether or not there are sufficient United States workers who are able,
willing, qualified, and available;
*
whether the employment of the alien will have an adverse effect on the wages
and working conditions of United States workers similarly employed; and
*
whether the employer has met the procedural requirement of the regulations.
Nevertheless,
there have been some significant changes in the PERM system compared to prior
procedures:
FILING
Employers
may submit the Application for Permanent Employment Certification (ETA 9089)
electronically. The employer can access the Department of Labor Website to
register and establish an account that will allow the employer to
electronically fill out and submit Form ETA 9089. Unlike the former system,
employers file applications directly with the U.S. Department of Labor (not
with a State Workforce Agency (SWA)). Although an employer has the option of
filing an application by mail, the Department of Labor recommends that
employers file electronically. Not only is it faster, it ensures that the
employer has provided all required information because an electronic
application cannot be submitted if the required fields are not completed.
Supporting documents are no longer submitted with the application. However, the
employer must provide the required supporting documentation if the employer’s
application is selected for audit or if the Certifying Officer otherwise
requests it. The employer is required to retain all supporting documentation
for five years from the date of filing the Form ETA 9089.
RECRUITMENT
PERM
requires the employer to conduct recruitment (job advertising) prior to filing.
The types of advertising depend on the type of position. Recruitment provisions
are divided into “professional” and “nonprofessional” occupations; additional
recruitment steps are required for professional occupations. A list of
professional occupations is published in Appendix A to the preamble of the
final PERM regulations. Professional occupations are those for which a
bachelor’s degree or higher is a customary requirement.
Recruitment
under PERM also requires advertisements in the Sunday edition of a relevant newspaper.
An acceptable newspaper is one that the employer is able to document that will
be the most likely to bring responses from able, willing, qualified, and
available U.S. workers.
In
addition to the required recruitment steps, the employer must place a job order
with the SWA serving the area of intended employment. Placement of job orders
with a SWA must be in accordance with each SWA’s rules and regulations.
PERM
was implemented to improve the operations of the labor certification process.
Nevertheless, the essential requirements of the process have remained the same:
*
The foreign worker must be hired as a full-time employee.
*
The job must be a bona fide position available to U.S. workers.
*
The job requirements must represent those customarily required for the
occupation in the United States and may not be tailored to the foreign worker’s
qualifications (such as with foreign language requirements).
*
The employer must pay at least the prevailing wage for the occupation in the
area of intended employment.
Does
a PERM Labor Certification mean a quicker Green Card for employees?
Not
really. One might think that PERM expedites the entire “Green Card” process.
That is not necessarily so. The PERM system went into effect on March 28, 2005,
and has in fact expedited the Labor Certification process itself. However,
beyond the Labor Certification, there are two more steps involved in becoming a
United States permanent resident: (1) filing the I-140, Immigrant Petition for
Alien Worker and (2) filing the I-485, Application to Adjust Status. It is with
the I-485 that the delays are occurring, especially for applicants from certain
countries with many immigration applicants such as Mexico and India.
Once
the Department of Labor has approved the PERM Labor Certification, it means the
Department of Labor found that there are not enough able, willing, and
qualified U.S. workers available to perform the alien’s job. The next step is
to file an I-140 with the Immigration Service (USCIS), which is done by the
employer of the alien. The I-140 approval means the Immigration Service has
found that the alien is in fact qualified for the position certified in the
labor certification and approves their employment in this capacity.
The
final step, filing an I-485 application to adjust status to that of a
“permanent resident,” usually takes the longest. For some nationalities the
wait time can be many years. This is due to the fact that there are more
individuals (especially those born in India, Mexico, the Philippines, and
China) applying for immigrant visas than there are immigrant visas available.
As an “immigrant visa” must be immediately available to adjust status, an I-485
application cannot be filed until the “priority date” is earlier than the date
listed on the Department of State’s monthly Visa Bulletin. When one files a
PERM labor certification, one receives a “priority date” (the filing date). The
priority date, the country in which one was born, and the employment-based
category (determined by the requirements of the job) determine when one can
file an I-485.
To
see who is currently eligible to file an I-485, the Department of State issues
a monthly Visa Bulletin with a list of current priority dates. This can be
found at the following link: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
For
example, as of October 2018, an individual born in India and classified in the
third preference employment-based category, who filed the PERM Labor Certification
before October 1, 2009, is now eligible to file the I-485, Application to
Adjust Status, and thus complete the Green Card process.
The complete
article will be published on the Blog of Ms. Cuprys.
*** Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries. References Law Firm Website: http://ww.servingimmigrants.com Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169 Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/ Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433 Findlaw: https://pview.findlaw.com/view/4161404_1 Media News article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4 See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/ and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility Ms. Cuprys recently prevailed in a hotly contested asylum cases against the U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
