PERM
The PERM Process is like a game of baseball:
- First base: Labor certification process
- Second base: Petition for the alien worker (form I-140)
- Third base: Adjusting the worker's status in the United States/Consular Processing (green card application)
- Home run: The foreign worker gets his or her green card!
First Base: Labor Certification Application
The first step in the PERM Labor Certification process is an application to the U.S. Department of Labor. The employer must recruit and advertise the prospective position they want to offer to the foreign national and show that there are no able, willing and qualified U.S. workers who can take the position on a full-time and permanent basis. In the recruitment process, the employer may be required to interview applicants for the position and to make a determination as to whether or not those applicants are qualified for the position. We work closely with the representatives of the organization to assure that they properly undertake and complete the recruitment and advertising process according to the U.S. Department of Labor guidelines.
There are several classifications in which an individual and an employer can obtain a PERM Labor Certification from the U.S. Department of Labor:
- EB-2 Visa - Advance Degree Professional - USCIS has established a confusing standard of equivalency for this category that contemplates five years of "progressively more responsible" work experience in the field following the attainment of a Bachelor's Degree.
- EB-3(a) Visa - Professional - Applicants who are beneficiaries of an employer's petition who are doing a job that requires attaining a specific Bachelor's degree or the equivalent and who have that degree or the equivalent. This category tracks the standard for an H-1B nonimmigrant visa. Here, the labor certification cannot be waived and there must be a labor certification application made to the U.S. Department of Labor.
- EB-3(b) Visa - Skilled Workers - Applicants who are beneficiaries of an employer's petition whose job requires a combination of at least two years of specific training, education or work experience. Labor certification cannot be waived and there must be a PERM Labor Certification Application made to the U.S. Department of labor for a green card in this category.
- EB-3(c) Visa - Other Workers (Unskilled Workers) - Applicants who are beneficiaries of an employer's petition whose job requires fewer than two years of specific training, education or work experience. Labor certification cannot be waived. It should be noted that 10,000 visas are reserved for this category. The wait times in this visa category may be great, extending many years, in some cases. The issue is not whether one can technically qualify for this visa category, but if one can get the visa in a time frame that makes sense.
The U.S. Department of Labor can approve, deny or audit an employer's PERM Application. An audit of the case will require the employer to provide all of the back-up documentation from the recruitment process to the U.S. Department of Labor. Once the PERM Application is approved by the U.S. Department of Labor, it remains valid for 180 days and must be filed (during that time) with the USCIS in connection with a Petition for an Alien Worker.
In order to obtain the PERM Labor Certification, the worker must meet all of the labor certification requirements. We review the foreign national's background and, in some cases, require letters from former employers to support their qualifications.
Second Base: Petition for the Alien Worker
Filing the Petition for the Alien Worker with the USCIS is the second step in the PERM Labor Certification process. During their review of the Petition for an Alien Worker Petition, the USCIS can ask the employer about several issues. Often, they ask smaller or marginal business enterprises about their "ability to pay" the prevailing wage that has been offered to the prospective employer.
Third Base: Adjustment of Status or Consular Processing
The third step in the PERM Labor Certification process becomes a consideration once the Petition for the Alien Worker has been approved. At this point, the employee can apply for Adjustment of Status or Consular Processing (the green card application). However, in some green card classifications — when the priority date is current and the PERM Labor Certification Application has been approved — the Petition for Alien Labor Certification can be filed simultaneously with the Application for Adjustment of Status in the U.S. If the foreign national wants or needs to obtain a green card at the U.S. Consulate abroad, they should go through the Consular Processing Procedure.
