The purpose of this handout is to provide a brief overview of the process whereby lawful permanent residence in the United States is attained based on an approved labor certification.This is only a general overview of the labor certification process and the steps thereafter toward legal permanent residency, and is not a substitute for legal advice regarding an individual case.Comprehensive legal advice may only be provided after a detailed interview on a case-by-case basis.Moreover, this handout is based on the law as it exists as of December1, 2008, and does not include changes to the law that are made after that date.

• OBTAINING A LABOR CERTIFICATION:

  In most cases, the first step toward permanent residence in the United States on the basis of employment is to obtain a labor certification from the Department of Labor (DOL) based on the fact that there are no qualified and available United States workers to fill the position in question. To this end, the employer must establish the minimum education and experience requirements for the position based on business necessity, and must offer to pay the employee at least 100% of the prevailing wage for the position as determined by the State Workforce Agency (SWA), which in California is the Employment Development Department (EDD). In addition, as a general rule, the employee must establish that he or she met all stated requirements prior to joining the sponsoring employer or to beginning the job to which the labor certification applies. This is typically accomplished by providing copies of degrees (and transcripts if necessary), as well as letters from past employers to demonstrate prior experience.

  As of March 28, 2005, the DOL instituted a new process for applying for Labor Certifications called PERM (Program Electronic Review Management system). PERM replaces both the “traditional” Labor Certification process and the “RIR” (Reduction in Recruitment) Labor Certification process. Although the PERM application (ETA-9089) may be submitted by mail, the preferable and more efficient means of filing is online. The DOL has indicated that an electronically filed application not selected for audit will have a computer-generated decision within 4 – 6 months of the filing date. Unfortunately, as of this writing, approximately 30% of cases filed are being selected for audit, rendering the time frame for adjudication rather unpredictable, although typically taking at least 12 – 14 months.

  Before filing the application, it will be necessary for the employer to engage in recruitment for the open position in the geographic area of intended employment, between 180 days and 30 days before filing the application. For most positions, recruitment involves placing ads in the newspaper of major circulation on two (2) consecutive Sundays, placing a job order with the State Workforce Agency (SWA)--which in California is the Employment Development Department (EDD), and posting a Notice of Filing at the location of intended employment and in any of the employer’s in-house media (internal email system, newsletter, etc.) for ten (10) consecutive business days. In addition, for professional positions (those positions that require at least a Bachelor’s degree), three (3) other forms of recruitment are required, one of which may occur in the last 30 days before filing (see the document entitled PERM Recruitment Requirements for specific requirement and details).

  The employer must review in good faith all applications received in response to the recruitment and should interview all possibly qualified applicants. (If any qualified applicants apply for the job and are willing to accept the position at the wage offered, the employer will not be able to obtain a labor certification on the employee’s behalf.)

  Employers are not required to submit supporting documentation at the time of filing the ETA-9089. However, they must be prepared to do so in the event of an audit. The DOL may ask for a written report regarding all applicants for the position and reasons for rejection, and may even request the original resumes/applications. Prior to commencing recruitment the employer should have a plan for collecting, reviewing and maintaining all job applications regardless of the employer’s usual practices. Reasons for rejection of each applicant may have to be presented to the DOL in the event of an audit. Our firm will work with the employer throughout the recruitment campaign and will assist the employer in organizing and presenting documentation of recruitment efforts in the event of an audit. Since the employer will have only thirty (30) days to respond to an audit, we recommend that recruitment documentation be maintained throughout the process and prepared for presentation before filing the PERM application.

• THE IMMIGRANT VISA PETITION:

  If the employer obtains a labor certification on behalf of the employee, the employer may then file an employment-based visa petition with the U.S. Citizenship and Immigration Service (USCIS) on the employee’s behalf.At that time, the employer must provide evidence of its continuing intention to employ the foreign national in a full time “permanent” or “non-temporary” position, and that it has the ability to pay the prevailing wage.If the employee documents that he or she possesses the necessary education and experience required for the job, and the employer documents that it is able to pay the prevailing wage to the satisfaction of the USCIS, the USCIS generally approves the visa petition.

• THE APPLICATION FOR PERMANENT RESIDENCE:

  After the employer receives an approved visa petition on behalf of the employee, the employee may apply for permanent residence. Pursuant to regulations released in 2002, aliens may now file the visa petition and the application for permanent residence concurrently, thus reducing the total processing time.  If the employee is already in the United States, he or she may be eligible to apply for permanent residence without leaving the United States; this process is known as applying for “Adjustment of Status.”  However, if the employee is in the United States but is not eligible to apply for Adjustment of Status, he or she may have to depart the United States and apply for an immigrant visa at the U.S. consulate abroad in his or her last country of residence.  If the foreign national is already outside the United States, he or she will likewise have to apply at the U.S. consulate abroad.

  The actual date on which the employee will be able to immigrate, i.e., become a Lawful Permanent Resident (LPR) or “green card” holder, depends on his or her priority date. The priority date is the foreign national’s position on the employment-based immigrant visa waiting list as determined by the U.S. Department of State. The priority date is the date on which the DOL received the labor certification application, assuming it was later approved. All employment-based preference categories have limited numbers of visas that are allocated on a world-wide basis. Immigrant visa availability depends on the number of qualified applicants for residence who have requested visas in a particular preference category. At this writing, some employment-based categories are “current,” i.e., immigrant visas are immediately available, thus allowing aliens in those categories to file for permanent residence immediately upon approval of the labor certification. Our firm will advise you about whether an employee’s priority date is current or whether it is necessary to wait before pursuing this last step.

  Please note that an applicant for Adjustment of Status or an immigrant visa at a U.S. consulate abroad must have the intent to be “permanently” employed by the petitioning employer at the time the Adjustment of Status is approved or the immigrant visa is granted abroad. If the applicant is working for his or her petitioning employer while pursuing permanent residency, the applicant should generally continue to do so throughout the pendency of the application, absent unusual circumstances. In most cases, the employee must continue to work with the sponsoring employer until the permanent residence application is approved. In some limited circumstances, the employee may be able to leave employment with the petitioning employer after the adjustment of status application has been pending for 180 days or more.