Green card based on employment offer
Are you a U.S. employer unable to find American workers and would you like to hire a foreign worker in a long-term position? Instead of filing periodically for temporary work visas would you rather sponsor your foreign employee for a green card without worry of visa expiration dates?
U.S. employers are often faced with a difficult employment market. They want to hire American workers but can't find willing and qualified people for their job openings. They can either shrink the business and adapt, or try to bring qualified workers from another country. The U.S. government allows U.S. employers to sponsor foreign workers if the employers are able to demonstrate that there are no U.S. workers that are able, willing, qualified, and available to accept the job, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
So, whether you would like to employ an engineer, chef, machine operator, nanny, software developer, or an executive for permanent work in the U.S., you may benefit from sponsoring your employee’s legal permanent residency through an employment-based green card. Employment-based green cards allow foreign workers of any occupation to live and work in the U.S. indefinitely. The first step of this process requires filing a Permanent Labor Certification with the Department of Labor (DOL).
Permanent Labor Certification (PERM) from the U.S. Department of Labor (DOL)
This step takes several months and requires substantial collaboration between the employer and its legal representative to ensure compliance with the program.
- Prevailing Wage Determination (10-12 weeks). The Department of Labor (DOL) determines the minimum wage that an employer must pay a foreign worker for the position offered. This “prevailing wage” is based on information related to the proffered position, such as job title, job duties, location(s) where the work will be performed, education and experience requirements. Prevailing Wage Determinations are valid for a period of 90 days to a year.
- Recruitment (65+ days). The recruitment process is meant to ensure that qualified U.S. citizen workers and U.S. Legal Permanent Residents have an opportunity to apply for the job opening before a Permanent Labor Certification is filed. In addition to notifying its current employees of the job opportunity (10-day Notice of Filing) the U.S. company is required to advertise the job with the State Workforce Agency and also run the job ad for two consecutive Sundays in a large newspaper. Three additional recruitment steps are required for professional positions (those that require at least a bachelor’s degree) from the following options: job fair, employer’s website, on-campus recruiting, private employment firm, local/ethnic newspaper, campus placement offer, job search website, trade/professional organization, employee referral program, and radio/tv advertisements. There are exceptions to these rules for some types of jobs. All recruitment steps must be completed between 30 and 180 days prior to filing the PERM application.
- PERM Labor Certification Results (4-7 months). The Application for Permanent Labor Certification is submitted online to DOL and it will either be approved, denied, or audited. The date the labor certification application is received by DOL is known as the filing date and is used by USCIS and the Department of State as the priority date.
- If the application is approved, the employer can move forward with filing the I-140 immigrant petition with USCIS;
- In case of a denial, DOL will explain the reasons for its decision. A request for review may be submitted to the Board of Alien Labor Certification Appeals within 30 days;
- DOL may also issue an audit to verify that the employer complied with federal regulations throughout the PERM process. In case of an audit, the employer will have 30 days to submit their audit file and Recruitment Report confirming that no U.S. citizens were hired either because they did not meet the job requirements for the open job, or because those who qualified were rejected for lawful reasons (e.g. salary offered was too low). During the recruitment process, the employer must maintain records of all recruitment steps taken and the results in an “audit file.” The audit file should include copies and evidence of all recruitment advertisements, resumes received, number of interviews, number of hires, reasons for non-hires, and the dates of each step in the recruitment process. The audit may delay the process by an additional 3-4 months.
After the labor certification application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.
Approved I-140 immigrant petition by the U.S. Citizenship and Immigration Services (USCIS)
During the second step in this process, the U.S. employer must demonstrate that it has the ability to pay the proffered wage. Typically, this is shown with evidence of current salary (if the foreign worker is already on the company's payroll), or with the most recent tax return showing that the company's Net Income exceeds the employee's salary. If the company has made investments and its Net income or bank account statements are unable to show the company's financial ability to pay the salary, the company's Net Assets can be used to demonstrate this.
In addition, the employee must prove that he/she meets the minimum job qualifications that were advertised. For example, the employee's education is typically documented with copies of diplomas and transcript. The experience may be documented with letters of employment from previous employers indicating the job title, job duties, and period of employment.
If USCIS approves the I-140 immigrant petition, the employee may apply for a green card either by submitting Form I-485 (if the employee is already in the U.S. in legal status) or by filing Form DS-260 if the employee is outside of the U.S. and will apply for the immigrant visa at the U.S. consulate.
While the process is lengthy and complex, our office is familiar with the nuances of Permanent Labor Certifications. To begin filing a PERM application for your employee, click here to schedule a consultation. Either prior or after the consultation, we will need you to complete this PERM questionnaire.