The Three Stages of Employer Sponsored Permanent Residence via PERM

For employers planning to fill positions in their companies with qualified, non-US workers – filing a PERM petition is the most popular option. It’s the most common form of attaining green card sponsorship via employment. Under the GC PERM process, two government agencies collaborate to enable employers to sponsor qualified, nonimmigrant workers.

The two agencies are the US Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL). According to these agencies, completing all green card PERM steps and processing “clean applications” takes approximately 180 days. Before you start calculating 180 days for filing PERM, let’s dissect the process of obtaining employment-based green cards.

The permanent resident card PERM process consists of three stages:

•       Obtaining PERM US Labor Certification for Recruitment (includes Prevailing Wage Determination)
•       Filing I-140 Application for Immigrant Visas (includes proving the employer’s ability to pay wages)
•       I-485 Adjustment of Status

Stage 1: Obtaining PERM US Labor Certification

Filing an employee PERM application to get labor certification involves two major steps –

1. Labor Market Test

The employee sponsoring the foreign worker must conduct a US labor market test. They have to determine whether there are any qualified, available, and willing candidates for the job in question. If there are qualified US workers for the job, the USCIS doesn’t allow the employer to offer the position to a foreign national. This part of the labor PERM process is fairly simple –

• •       Before filing an employee PERM application, the employer must promote the position in question for 30-180 days. They must ensure there are no qualified US-born workers available for that position.
  •       Promoting the position includes – advertising in Sunday newspaper listings, posting ads on recruitment websites, etc.
  •       The employer must review all the CVs sent during this process. They must also document all their CV reviews, copies of ads placed, resumes, etc.

The employer essentially has to prove that there are no qualified candidates for the position in the US labor market. Collecting more evidence gives employers (and their foreign workers) a better chance of filing clean, hard-to-reject PERM petitions.

1. Prevailing Wage Determination

Any employer planning to help a foreign worker immigrate must prove that he/she is offering the prevailing wage for the position in question. The prevailing or standard wage for any job or position is determined by the DOL. The agency assesses the job requirements, employee skills, the location of employment, and other details to determine the prevailing wage.

This determination or estimate must be obtained by the employer from the DOL before filing the employee PERM application. This is where an experienced immigration attorney’s assistance could be of immense help. These attorneys may not be able to review resumes or determine minimum job requirements for the employers. But, they can –

•       Provide checklists to assist the process of labor filing for green card, step by step.
•       Inform employers about key industry details like PERM processing time per country.
•       Ensure compliance at every step
•       Review the employer’s recruitment advertising to ensure it’s on par with the DOL’s standards.
•       Compile and submit all the evidence to the DOL & ensure they conduct the prevailing wage determination process swiftly.

Normally, it takes employers roundabout 60 days to engage in the necessary recruitment process. Completing the labor market test and obtaining the prevailing wage determination usually takes about 4-6 months. After that, the employer can file the employee PERM application with the DOL.

How long after PERM file does the DOL adjudicate the application? Several months. If the DOL audits and finds flaws in the employee PERM application, the employer in question will have 30 days to respond. The application is sent back to the processing queue. PERM processing time per country varies based on backlogs. For more details, check the official DOL website.

Labor filing for green card step by step involves many costs. As per DOL laws (20 C.F.R. §656.12(b)), employers have to undertake all costs associated with the employee PERM application process. They can’t ask employees to pay any fees involved in this process. These costs are just like training or recruiting fees for employers.

Stage 2: Filing I-140 Application for Immigrant Visas

Once a PERM application is approved by DOL (certified) the employer’s next duty is to get an I-140 Petition approved. This involves submitting an I-140 Immigrant Worker Petition to the USCIS. The petition should be filed within six months of the employee PERM application getting approved. The employer also has to undergo the following steps –

•       Prove that they have the ability to pay standard wages.
•       Prove that the nonimmigrant employee has the skills, experience, & education mandated in the PERM application.
•       The evidence can come in the form of P/L statements, balance sheets, and other financial information of the employer.

An experienced immigration attorney can help employers determine what documents will support their filing and get their I-140 Petition approved without any delays or hassles. The USCIS takes 4-6 months to process I-140 Petitions. Can PERM be filed in premium? Yes. The USCIS offers premium processing services for extra filing fees.

The USCIS adjudicates these “premium” petitions within 15 calendar days. Does PERM labor certification have premium processing? Yes but, the USCIS may request additional evidence. If that happens, the processing period may get extended by 15 calendar days for those who pay for premium processing.

For normal, non-premium I-140 petitions, this extended period could take 30-60 extra days. Unlike with employee PERM applications, there are no restrictions regarding who has to pay the fees to get the I-140 Petition approved. Employers can pass on these costs to their sponsored foreign employees.

Stage 3: I-485 Adjustment of Status

This is the last step in the GC PERM process. The foreign employee must file an I-485 Application to adjust his/her nonimmigrant status. The employee can file applications on their spouse and children’s behalf as well.

•       Completing this step is easier for foreign nationals already residing in the US.
•       Non-residents have to file DS-260 Immigrant Visa Applications with their local US consular posts. They have to visit US consular posts in their respective home countries to participate in official interviews. When visa applications are processed abroad, the process takes longer (6-9 months).
•       That’s why getting the I-485 application processed in the US (which takes about six months) is a better option. All cases and applications are given “priority dates” based on when/where they are first filed with USCIS.

This priority date signifies the foreign worker’s “place in queue” for a green card for someone of their nationality as they become available. The USCIS has an immigration quota for all countries. Different countries have different quota backlogs. If your priority date is “current” you can file your I-485 application along with your I-140 Petition and expect a swift approval.

If your priority date isn’t current (because of quota backlogs) the approval process may take months or even years. For instance, foreign nationals from populated countries like India & China have to face very long backlogs. It could take up to ten years for their priority dates to become current. In this period, the nonimmigrant employee can receive promotions/transfers.

But, as per their existing PERM applications, they can only accept similar jobs and positions. For instance, a store clerk with a pending I-485 application cannot take on an executive role during the approval period. That’s why Executive Actions give foreign nationals great flexibility during this waiting period.

Experienced immigration attorneys help employers and employees track their priority dates and accurately prepare their filings. The USCIS charges filing fees to complete this process. For children under 14, the USCIS charges fewer fees. Anyone can pay these fees (along with other expenses like attorney fees) – the employee, employer, or a third party.