The Employment-Based Green Card Petition When PERM is Required
If you are an employer looking to sponsor a foreign national employee for a green card, you may find the process to be complex, especially when PERM is involved. It is an extremely lengthy process involving many steps which are subject to strict timelines. The regulations are exacting, and documentation requirements are strict. Before you undertake this process, you should understand the terminology, the various stages, the timing, and employer requirements.
WHAT IS PERM, OTHERWISE KNOWN AS DEPARTMENT OF LABOR (DOL) FORM ETA-9089?
There are certain green card petitions which do not require the filing of a PERM (some examples are for extraordinary ability, National Interest Waiver, and investor visas). However, the most common employment-based green card petitions (in the EB-2 and EB-3 categories) do begin with the Program Electronic Review Management (PERM).
The purpose of the PERM is two-fold:
To test the labor market: The employer must show that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment.
Prevailing Wage Determination: The employer must demonstrate that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The first two steps in the PERM green card process fulfill these two purposes. These steps are explained in the following sections.
STEP 1: FILE FOR A PREVAILING WAGE DETERMINATION
The PERM process starts with filing for a Prevailing Wage Determination (PWD), which is electronically filed on DOL form ETA-9141. The form requires information such as: employer information, job title, job duties, minimum required education, minimum required experience, special skills required, and place of employment. The Department of Labor assesses the job duties, assigns the job an occupational code and job level, and assigns the job a wage from the Occupational Employment and Wage Statistics program, which is compiled annually and detailed by U.S. county.
There is no charge to request a prevailing wage determination (PWD). Once issued, a PWD is valid for a minimum of 90 days but for no more than 1 year from the determination date. Processing times for obtaining a PWD vary. Currently (March 2022), processing times are approximately 6 months.
STEP 2: RECRUITMENT
Once a PWD is issued, the next step consists of advertising for the position, at a wage that is equal to or higher than the prevailing wage. The purpose of this step is to test the labor market, to verify that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. A U.S. worker is defined as a worker who is a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien who is authorized to work in the U.S. without sponsorship. If there is a U.S. worker who fits the minimum qualifications of the job, or can fit the minimum qualifications with a reasonable period of on-the-job training, and is able, willing, and available to accept the job, it must be offered to the applicant. If the position is filled by the U.S. worker, it cannot be offered to the foreign national and the process ends here.
Recruitment must start by the date of the PWD expiration. Recruitment lasts for at least 60 days. The first 30 days are active recruitment, when ads are placed in locations mandated by the regulations. For a professional position, ads must be placed in 6 places which are specified by the regulations. One mandated recruitment step is one ad placed on two different Sundays in the newspaper of general circulation, in print, in the area of intended employment. For professional positions requiring experience and an advanced degree, the second Sunday newspaper ad may be substituted with an ad in a professional journal appropriate for the job offered. Recruitment costs must be borne by the employer, and the costs average between $1,000 and $5,000, depending upon the area of intended employment. The next 30 days are a “cooling off” period, where resumes are assessed, and applicants are contacted and interviewed. A U.S. applicant may only be rejected for a valid reason. The recruitment remains open for 180 days after the first ad is posted, within which a PERM must be filed.
Recruitment efforts must be evidenced by dated copies of the ads. At the end of the recruitment phase, a recruitment report must be created and signed by the employer or the employer's contact describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. applicants rejected, summarized by the specific lawful job-related reasons for such rejections. This recruitment package must be retained for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089. The DOL may request the recruitment documentation by issuing an audit on the PERM.
STEP 3: FILING THE ETA-9089 PERM
Once the employer has 1) demonstrated that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers by obtaining a prevailing wage determination, and 2) tested the labor market by showing that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment, a PERM may be filed for the foreign national. The PERM is the basis of the green card application. It details the job and then the foreign national’s qualifications for the job.
The ETA-9089 is filed electronically with the Department of Labor. There is no filing fee. The filing date of the PERM is referred to as the priority date, which is a means of marking where the beneficiary is in the line for a green card. Processing times for certifying a PERM vary. Currently (March 2022), PERM certification times are approximately 6 months. If a PERM is chosen for audit (randomly selected or triggered by a particular fact), at least 3 months are added to the processing time.
STEP 4: FILING THE I-140 IMMIGRANT PETITION WITH UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
Once the PERM is certified by the DOL, it remains valid for 180 days in which an I-140 Immigrant Petition must be filed with USCIS. USCIS validates the education and experience of the foreign national, compares it to the position’s minimum requirements, and approves the petition if the foreign national does meet the job’s minimum qualifications. USCIS also ascertains that the employer possesses the “ability to pay” the foreign national the offered salary from the beneficiary’s priority date until the beneficiary obtains lawful permanent residence.
USCIS will either approve the petition, or it may issue a “Request for Evidence” (RFE). An RFE is issued if USCIS requires further evidence before it can approve the petition. A petitioning employer then has 90 days to submit the required evidence to USCIS. If the petitioner does not reply to the RFE, USCIS will deny the petition.
In March 2022, USCIS filing fees to file the I-140 Immigrant Petition are $700. Unlike the PERM, where regulations are clear that an employer must pay 100% of all PERM costs, including legal fees and recruitment costs, there is no such regulation for the I-140. Premium Processing, a USCIS service that guarantees some type of action on the petition within 15 business days, costs $2,500 and may be paid by either the petitioning employer or the foreign national beneficiary. USCIS processing times vary. In March 2022, processing times, without premium processing, are between 10.5 and 24.5 months.
STEP 5: FILING THE I-485 APPLICATION TO REGISTER PERMANENT RESIDENCE OR ADJUST STATUS WITH UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
The final step in the green card process is filing the I-485 Application to Register Permanent Residence or Adjust Status. Upon approval of this application, the foreign national will obtain a green card and will be eligible to remain in the U.S. as a Legal Permanent Resident.
A foreign national is able to file the I-485 when their priority date (in this case, date the PERM was filed) is current as per the Visa Bulletin. Many times, the priority date is current which means that the foreign national is able to file the I-485 concurrently with the I-140. For nationals of India and China, however, there is a visa backlog. For Indian nationals, this backlog is currently 9 years for EB-2 and 10 years for EB-3. This means that an Indian national, based on the current Visa Bulletin, needs to wait 9 to 10 years before s/he can apply for a green card. Until a visa is available to them, the foreign national must remain in the U.S. on a nonimmigrant visa, such as the H-1B visa.
At this stage, the employer’s obligation is simply to have a permanent job open for the sponsored employee at the time their green card is issued and must sign the I-485 Supplement J attesting to this. The employer is not obligated to pay the fees for this last step of the process, which, as of March 2022, is $1,225 for an applicant 14 years or older and $750 for an applicant 13 years of younger. Each member of the applicant’s family must file a separate I-485; the I-140 holder is the main applicant and the members of his/her family are derivative applicants.
CONCLUSION
The employment-based green card process with PERM is a lengthy process. Currently, the process from starting the PERM to obtaining an approved I-140 Immigrant Petition is taking anywhere from 1.5 to 3.5 years. It is a highly regulated area of law with very exacting regulations that span the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS). Any error in any part of this process will negate the entire process, which is a loss of a substantial amount of time and money. The guidelines listed in this article are general; each beneficiary’s particular case has its own set of facts which may require a different process than what is outlined above. Therefore, it is highly encouraged that a petitioning company engage an attorney familiar with the PERM green card process before starting any green card petition for a foreign national.