Magdalena Cuprys, EMPLOYMENT-BASED GREEN CARD

 

 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

Magdalena Cuprys, In this comment, Magdalena Cuprys, Esq. addresses and explains the business visa issues and visa alternatives in the U.S.

Article 2: BUSINESS VISAS

In this comment, Magdalena Cuprys, Esq. addresses and explains the business visa issues and visa alternatives in the U.S.

In the second article of her series of Instructional Articles, Florida Attorney Magdalena Cuprys comments on business visas for employment and possible alternatives.

Preliminary Considerations

Many visa applicants assume that once they complete the lengthy and expensive visa process and detailed interviews both at the U.S. Embassy and upon arrival in the U.S., they have accomplished their American Dream. If only that could be true.

Once they recover from the whole fingerprinting and interviewing stress, there is more to come. Whether you are a professional or a student, American bureaucracy will keep you busy for at least the first two months upon your arrival. You will quickly learn that one simply cannot function without the magic nine digits, known as a social security number (SSN). The social security system was designed to track income and earnings so that people could collect payments at a later point based on how long and how much they contributed over time. However, since the government assigns a unique number to each individual, other institutions like to use it for their own purposes. Not having the SSN will make it impossible to open a bank account, as well as to receive a paycheck! Finding a local social security office should be your top priority, especially since you will have to wait for weeks before you get your number in the mail. However, once it arrives, all the barriers and frustration will disappear, and you will be all set to start your new American life.

ALTERNATIVES TO THE H-1B VISA

Because H-1B work visas are limited (currently only 65,000 per year, plus 20,000 for holders of advanced U.S. degrees), it is important to keep in mind that there are alternatives that can help you bring needed foreign workers to the United States. You might want to consider some of the other nonimmigrant visa categories available that are not subject to this limitation. Here are some of the choices:

B-1 in lieu of H-1B 

This visa allows employees of a foreign company to come to the United States to participate in a project or training program. Only for short-term assignments, this classification requires that the foreign national continue to be employed by the foreign company and return to the foreign company after the project in the United States has been completed. The visa holder cannot receive a salary or other remuneration from a U.S. source except for an expense allowance or reimbursement for incidental expenses.

Trainee visas: J-1 and H-3 

These visas allow foreign students and professionals to enter the United States for the purpose of training or developing their careers with a U.S.-based host organization for up to 18 months and 24 months of training, respectively.

Intracompany transferee: L-1 visa 

One of the most useful tools available for international companies, the L1 visa category applies to foreign workers who work for a company with a parent, subsidiary, branch, or affiliate in the United States. These workers come to the United States temporarily to perform services either in a managerial or executive capacity (L-1A), or one which entails specialized knowledge (L-1B) for a parent, branch, subsidiary, or affiliate of the same employer that employs the professional abroad. The employee must have been employed abroad for the affiliated company on a full-time basis for at least one continuous year within the last three-year period to qualify. L-1 visas are issued up to a maximum initial period of three years and can be extended for up to seven years for L-1A managers and five years for L-1B specialized knowledge personnel.

Treaty Trader/Investor: E-1/2 visas 

These visas are available to nationals of certain countries that have trader and/or investor treaties with the United States. The E-1 Treaty Trader visa allows you to establish and run a U.S. business that has substantial trade with your home country. The E-2 Treaty Investor visa allows you to establish and run a business with a “substantial investment”

E visas are issued initially for two years and can be extended almost without limit.

Individuals of Extraordinary Ability: O-1 visa 

The O-1 visa category is reserved for individuals of “extraordinary ability” in the sciences, arts, education, business, or athletics. To qualify as an individual of extraordinary ability, applicants must demonstrate that they possess “a level of expertise indicating that the person is one of a small percentage who has risen to the top of a field of endeavor.” Even though it sounds like only Nobel-prize winners can qualify, the truth is that the USCIS has dropped the standard, and the O category has become a useful alternative category. An initial O-1 petition can be filed for up to a three-year maximum employment period. Subsequent extensions may be for no more than one year at a time. There is no limit to the number of extensions possible.

J-1 VISAS FOR CULTURAL EXCHANGE 

Under the Mutual Educational and Cultural Exchange Act of 1961, the U.S. Department of State’s Summer Work/Travel program provides “foreign postsecondary students an opportunity to become directly involved in the daily life of the people of the United States through travel and temporary work for a period of up to four months during their summer vacation.” Foreign students participating in the program are authorized to work anywhere in the United States. Typically, most students work in nonskilled service positions at businesses such as resorts, hotels, restaurants, and amusement parks. Hiring a foreign student through the Summer Work/Travel program has some distinct advantages.

EMPLOYMENT-AUTHORIZED CANDIDATES 

All the immigration-related matters are coordinated by organizations designated by the U.S. Department of State (sponsors) to administer exchange-visitor programs.

The immigration process and the costs associated with hiring foreign students intimidate many businesses. More often than not, it is the foreign student who initiates the process with a sponsor. It is also the student who pays the sponsors the fee to obtain the required documents to procure a J-1 visa for entry to the U.S.

CANDIDATES PROFICIENT IN ENGLISH 

All prospective exchange visitor participants must possess sufficient proficiency in the English language to participate in their programs. (22 CFR §62.10(a)(2))

QUALIFIED CANDIDATES 

All prospective exchange-visitor participants must be “bona fide postsecondary students actively pursuing degrees or full-time courses of study at accredited educational institutions, or as that status is defined by the foreign national’s home country educational system.” (22 CFR §62.32(b)(2))

Given this educational requirement, all program exchange participants will have completed a secondary-school education or its equivalent. Employers can be assured that candidates will have a certain level of education.

CANDIDATES SELECTED AND QUALIFIED BY YOUR BUSINESS 

No prearranged employment before the foreign student enters the United States is required. Employers can make a hiring decision after the foreign student has arrived in the United States. Businesses will have the benefit of interviewing the candidate before extending an offer of employment. This will assure that the employment relationship will meet the needs of both the employer and the employee.

CULTURAL EXCHANGE 

A foreign student could contribute wonderful cultural influences to a business. Likewise, the opportunity that an employer gives a foreign student to gain an insight into American business and culture is an experience of a lifetime.

Think beyond the traditional sources of seasonal employees. Participating in the Summer Work/Travel program may be just the thing a business needs to turn its next busy season into a financially and culturally rewarding experience.

The 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: www.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