Permanent Residence: Employment-based
WITH LABOR CERTIFICATION
WITHOUT LABOR CERTIFICATION

WITH LABOR CERTIFICATION

The Labor Certification process is a test of the labor market. To succeed, an employer needs to show that there are no able, willing, qualified, and available U.S. workers for the position in question.
  1. Recruitment and filing of Labor Certification application under the PERM system
    There is a 30-180 day recruitment period. Usually it takes two to three months to prepare the case for filing. There are four mandatory steps that must take place 30-180 days before filing the application:

    1. Obtain a Prevailing Wage Determination from the Department of Labor
      A request form must be completed and submitted. Responses can take six to eight weeks.

    2. Newspaper ads: Must have two, and must be placed 31-180 days before filing the application.
      1. Job description and job ad: generally, should be simple, not too restrictive, and not too tailored to the applicant’s qualifications. Ads don’t need the salary.
      2. Newspaper ads must appear on Sundays in the appropriate newspaper of general circulation

    3. Job Order: A job order must be placed with the appropriate State Workforce Agency for thirty days. Any resumes they receive will be forwarded to the employer for review. Order must be placed 31-180 days before filing.

    4. In-House Posting: A job notice showing the offered wage MUST be posted internally for 10 business days, 31-180 days before filing. If the company uses any in-house electronic or printed media to recruit for similar positions the notice must be posted electronically in accordance with the normal procedures used in the organization for such recruitment.

    5. Other recruitment that must occur throughout the recruitment period: THREE additional, different steps are required from the following list. Only one of these steps can be done within 30 days of filing the application. The recruitment does not have to be for the exact same job, but same type of job (e.g. Software Engineer):

      1. Company Web site in job openings section
      2. Other job search web site. This can include web listings on the newspaper’s website. Please make sure that the listing shows company name and an e-mail or other contact address for responses.
      3. Local or ethnic newspaper advertisement - must obtain copies of newspaper
      4. Private Recruitment Firm - Document with a contract or letter confirming the jobs the recruiter worked on
      5. Job Fair - Get printed proof of participation in fair. Obtain print out of all jobs offered.
      6. Employee referral program - it must offer incentives, it must be documented, employees must be notified, it must be carried out during the recruitment period, and the Labor Certification job must have been included
      7. Campus placement office - Place listing and obtain written confirmation of the listing
      8. Professional journal or professional/trade organization newsletter advertisement - must provide copy of publication
      9. On-campus recruiting - Participate in event to recruit new graduates; must document participation
      10. Radio or TV advertisements - must document by showing copy of contract and proof of airtime

    6. NOTE: If any employees are laid off who are in the same occupation and location, they must be contacted and considered for the position. The results must be included in the recruitment results summary.

    7. For the recruitment results summary to be presented upon request to the Department of Labor, the employer must keep track of all resumes sent in response to the advertisements. If anyone appears to be qualified based on their resume, they must interviewed by telephone. The reasons why each applicant was not qualified must be recorded. The employer must retain all resumes just in case the Department of Labor requests them.

    8. The Department of Labor will approve, deny, or request an audit of each electronically filed Labor Certification application. Both random and cause-related audits can be required. An audit requires a response from the employer in 30 days. The employer must be ready to present all required documentation for each application to avoid any delay or possible findings of noncompliance. In cases of noncompliance or suspected fraud, the Department of Labor may order “supervised recruitment” whereby it specifies when and where advertising will take place, collects all the resumes and forwards them to the employer, and the employer must provide a written evaluation of each and every resume before a decision can be made. The employer may be subjected to doing “supervised recruitment” for all Labor Certification applications for up to two years for “substantial failure” to respond to an audit. A Labor Certification can be revoked at any time. The employer must keep a copy of the application and all documentation for a period of five years.

  2. Next Steps in the Process

    1. The PERM Labor Certification is filed electronically. Once approved, the Labor Certification is valid for 180 days.

    2. After approval by Department of Labor, an I-140 Immigrant Petition for Alien Worker may be filed with the US CIS before the PERM expires (180 days). It confirms that the same job is still available to the same employee and that the employer can pay the salary of the employee.

    3. The date that the Labor Certification is filed is the employee’s "priority date." Green cards are allotted to each country on an annual basis in various categories, and the priority dates they are currently processing are shown on a monthly chart, the Visa Bulletin, maintained by the U.S. State Department. http://travel.state.gov/visa/bulletin/bulletin_1360.html
      If the employee’s Labor Certification was filed before the date shown in their category on the Bulletin, the employee can apply for permanent residence. Depending on the category and country of birth, there may be a wait of several years before someone can apply for a green card.

    4. If the priority date is current, the foreign national (and spouse and children, if applicable) can apply to the US CIS for Permanent Residence (green cards) on form I-485.

      The I-140 and application for Permanent Residence can be filed simultaneously if the applicant’s visa category is current.

    Please note that the processing times change frequently and get shorter or longer depending on the government’s circumstances.
    http://egov.uscis.gov/cris/processTimesDisplayInit.do

WITHOUT LABOR CERTIFICATION

Most individuals require Labor Certification (PERM), but certain special categories of individuals don’t require Labor Certification:
  1. Extraordinary Ability (EB1-1)
    The applicant needs to demonstrate that s/he is one of that small percentage who have risen to the very top of their field of endeavor, and that s/he has sustained national or international acclaim. No employer/sponsor is required, but the Applicant must show that s/he will continue to work in the area of expertise.

    Applicants in scientific fields must prove at least three of the following:

    1. S/he has received a nationally or internationally recognized award in the field
    2. Membership in associations in the academic field which require outstanding achievements of their members
    3. His/her work has been cited and discussed in major media and/or scholarly publications written by others in major trade publications or other media
    4. S/he has been the judge of the work of others in his/her field
    5. S/he has done original research of major significance in the academic field
    6. S/he has published scholarly articles in his/her field in professional publications and/or books
    7. S/he has performed a leading or critical role for an organization which has a distinguished reputation
    8. S/he has commanded a high salary or other significantly high remuneration for services, in relation to others in the field

    It is extremely difficult to succeed in this category. There are many other subjective factors that the US CIS considers when adjudicating this type of case.

  2. Outstanding Researcher (EB1-2)
    For this category, the Applicant must show that s/he is outstanding in an academic field. The Applicant must have an employer and a research position which must be either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.

    The professor or researcher must be recognized internationally as outstanding in the academic field specified. Applicants must prove at least two of the following:

    1. Receipt of major prizes or awards for outstanding achievement in the academic field
    2. His/her work has been cited and discussed in scholarly publications written by others
    3. S/he has been a judge of the work of others (such as a reviewer of articles for scholarly journals)
    4. S/he has published scholarly books and articles in journals with an international circulation
    5. S/he has done original research in the academic field, (including patents, if any)
    6. S/he has at least three years of experience in research, and his/her research has been recognized as outstanding in the field. If teaching experience, must have first attained his/her degree and had full responsibility for the class taught.

    The United States employer must be:
    1. A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien's academic field, or
    2. A department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field

    The employer must:
    1. Employ at least three persons full-time in research positions and
    2. Must show that it has achieved documented accomplishments in an academic field

    It is also extremely difficult to succeed in this category. There are many other subjective factors that the US CIS considers when adjudicating this type of case.

  3. Manager/Executive (EB 1-3)
    This category is available to employees of international companies who maintain business operations in the United States as well as overseas. The prospective employee beneficiary must prove that he or she has been employed abroad for at least one year in a managerial or executive capacity. The petitioning employer must have been doing business for at least one year.

    The beneficiary must seek to render such services to a branch, subsidiary, parent, joint venture, or affiliate of the foreign employer in the U.S. The petitioning company must show that it will continue to do business in at least one other country, and that it can support an office in the U.S. and pay the salary of the beneficiary. The beneficiary must be employed in a position that is managerial or executive, each of which has specific requirements.

    Documentation of incorporation, office space, bank accounts, tax payments, balance sheets, contracts, leases, photos of the premises, organizational charts, and other documentation must be provided.

  4. National Interest Waiver (EB 21)
    No employer/sponsor is required, but the Applicant must show that s/he will continue to work in the area of expertise. The successful applicant must have an advanced degree or exceptional ability who will substantially benefit prospectively the national economy, cultural or educational interest, or welfare of the United States.

    USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:

    1. That the foreign national's proposed endeavor has both substantial merit and national importance;
    2. That the foreign national is well positioned to advance the proposed endeavor; and
    3. That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

    It is also extremely difficult to succeed in this category. There are many other subjective factors that the USCIS considers when adjudicating this type of case, however having a strong argument that the Applicant’s work furthers an important national interest is extremely helpful.

  5. Schedule A Groups I and II (EB 21)
    Schedule A is a list of pre-certified occupations codified in the PERM regulations for which the Secretary of the Department of Labor previously has determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in such occupations.

    Schedule A applies only to registered nurses and physical therapists, and Group II, aliens of exceptional ability. The Schedule A, Group II designation is limited to aliens of exceptional ability in the sciences or arts (656.5(b)(1)) and aliens of exceptional ability in the performing arts (656.5(b)(2))

    1. For Form I-140 petitions filed for Registered Nurses, an unrestricted permanent license to practice nursing in the state of intended employment, CGFNS certificate issued by the Commission on Graduates of Foreign Nursing Schools or evidence that the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN), administered by the National Council of State Boards of Nursing.
    2. For Form I-140 petitions filed for Physical Therapists, a permanent license to practice in the state of intended employment or a letter or statement, signed by an authorized state physical therapy licensing official in the state of intended employment, stating that the beneficiary is qualified to take that state’s written licensing examination for Physical Therapists.
    3. For Form I-140 petitions filed for Schedule A Group II for aliens of exceptional ability, evidence of widespread acclaim and international recognition accorded the alien by recognized experts in the alien’s field and evidence that alien’s prior and intended work requires exceptional ability.
    4. In addition, the following items are required for all petitions:

      1. The Form I-140 petition, with appropriate filing fees
      2. An uncertified Form ETA-9089, in duplicate, signed in the original by an authorized official of the petitioning organization, the alien, and the representative, if any
      3. A wage determination issued by the State Workforce Agency (SWA) having jurisdiction over the proposed area where the job opportunity exists or by the SWA having jurisdiction over the petitioner’s headquarters if the prevailing wage will be derived from the area of the employer’s headquarters in the situation of roving employees.
      4. A copy of the notice sent to an applicable collective bargaining unit, or a copy of the notice posted with attestation of posting for at least ten consecutive business days within the period between 30 and 180 days preceding the petition filing
      5. Copies of any and all in-house media, whether electronic or printed, in accordance with the normal procedures used in the employer’s organization for the recruitment of similar positions to the position specified in the Form 9089

Please note: You should treat this information as a guide for discussion with an attorney. Processes and regulations change constantly. There may be issues not mentioned here which affect the approach, timing, and success of your case.