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PERM Labor Certification

The PERM Labor Certification is a great, and typically the most frequently used, option for obtaining a green card with the help of an employer sponsor.   It is also one of the most challenging.

Broadly, three steps are involved in this process.

– First, the employer must file a PERM Labor Certification Application with the U.S. Department of Labor.

– Second, upon receiving labor certification approval, the employer must file an Immigrant Visa Petition (Form I-140) with the Department of Homeland Security’s USCIS.

– Third, the individual files an Adjustment of Status application (Form I-485) with USCIS.

The process is explained in greater detail below.

PERM Labor Certification

Before certifying the employer’s PERM application, the Certifying Officer of the U.S. Department of Labor must find that there are:

not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Prior to filing the PERM application, the employer is required to offer the position to U.S. workers.  It is required to do by advertising the offer of permanent employment through a series of mandatory recruitment steps –these steps are predefined by USDOL – in order to establish that it was unable to find “able, willing, qualified and available” U.S. workers and that its employment of the foreign national employee will not “adversely affect” US workers.

Federal USDOL regulations define the particular steps the employer must undertake and the content of each of step.  In addition to the mandatory print advertising in the largest circulating newspaper in area of intended employment, the employer must also undertake other recruitment steps to recruit U.S. workers.  Similarly, it must demonstrate that the wage offered meets USDOL’s wage requirements.  To this end, the employer must obtain a DOL determination of the appropriate wage that must be offered for the permanent employment.

As the PERM application is submitted online and is based on an employer’s assurance that it has complied with all mandatory recruitment steps and other requirements, USDOL audits a certain number of applications on a regular basis to ensure program integrity.  Thus, thorough documentation of the employer’s recruitment efforts is key to the PERM application’s approval.

EB2 vs. EB3

The PERM application defines the employment-based preference category of the offer of permanent employment.  The preference category becomes especially vital in the green card process to individuals of certain nationalities, to India and China especially, which are subjected to visa retrogression (visa backlog).  Under current visa trends, the second preference (EB2) provides a faster path to permanent residency, while the third preference (EB3) creates long green card wait times because of visa backlogs.  The determination of whether the offer of employment may be EB2 or EB3 falls entirely on the offered employment and is not based on the individual employee’s education and experience.  Skilled handling of the PERM application is therefore needed to ensure that an optimum preference category is chosen.

Form I-140, Immigrant Visa Petition

Upon DOL certification of the employer’s PERM, which is valid for 180 days only, the employer may file an Immigrant Visa petition (Form I-140) with USCIS.  Here, the employer undertakes to offer permanent employment to its foreign national employee and should be prepared to submit to USCIS: documentation relating to the employer’s offer; the employee’s qualifications; and the employer’s ability to pay the wage offered.  The employer must also request USCIS to issue the appropriate immigrant visa preference category (EB2 or EB3) in this second step.

Priority Date, Adjustment of Status, and Consular Processing

Filing an Adjustment of Status (Form I-485 or AOS application) is the third and last step in the permanent residency process.  USCIS’ approval of this application grants the individual green card or permanent resident status.

A current Priority Date must be available to file an AOS application

An AOS application may not be filed unless the Priority Date—in the PERM context, this is date the PERM labor certification is filed with USDOL—is current.  The Department of State (DOS) publishes a monthly Visa Bulletin which lists the current Priority Dates for various employment-based and family-based preference categories.  The U.S. immigration laws uses preference and quota systems on how many individuals may immigrate to the U.S., with the annual per-country limitation of 7%.  For nationals of some countries, such as China and India, the demand exceeds the supply (oversubscribed countries), so visa retrogression (visa backlog) occurs.  Additionally, the visa backlog for certain preference categories are greater than others; thus, for India, the EB3 category is more backlogged than EB2, while EB1 remains current.

The AOS applicant must be physically present for filing an AOS application

Physical presence is required to file the AOS application; in cases where the foreign national is overseas, a request for consular processing of the immigrant visa may be made.  However, there are many legal considerations that must be weighed before deciding to go this route.  We invite you to contact the Paruthipattu Law Firm to discuss the appropriate choice for your case.

Advance Parole and Work Permits

Along with, or after the filing of an AOS applications, an AOS applicant may also obtain work and travel permits.  A work permit (Form I-765 application), or an Employment Authorization Document (EAD) provides work authorization independent of the applicant’s nonimmigrant status while the Adjustment of Status application is pending.  Similarly, a travel permit (Form I-131 application), or an Advance Parole allows AOS applicants to leave the country and return to the United States while their AOS applications are pending.  A travel permit allows the applicant to seek entry into the U.S. even if they do not have a valid visa stamp in their passport.

Family Members of the AOS Applicant

Immediate family members (spouse and children under 21 years of age) are able to file their AOS applications concurrently with the Principal Applicant.  Alternatively, their applications may be included on an already filed I-485 so long as a priority date is current for them to file, and they are included on the primary applicant’s application before it is approved.