One common way an employer can sponsor an employee is through the labor certification process. A labor certification case is extremely complex, so any employer thinking about this type of case should talk to a qualified immigration lawyer. Many of the “rules” are agency memos or FAQs and they change with very little notice. This blog just gives a broad overview of the process.
There are three steps in PERM labor certification cases:
- The employer applies for a labor certification (called a PERM application) from the Department of Labor. The filing date of the application is called the priority date.
- The employer applies for an immigrant worker petition from the United States Citizenship and Immigration Services. This sets the priority date and determines the employee’s immigrant visa category.
- The employee applies for lawful permanent residence (the Green Card). You can file the application only when the priority date is current.
The entire process requires that there is a full time, permanent position available to the employee. A change in employers or a change in job title and duties may require a new labor certification.
Also, the employee, if in the United States, must be in lawful status during the entire process. Since it can take years to get to the third step, we often start the labor certification process when the employee is still on his or her first work visa, such as an H-1B.
The Application for Labor Certification (the PERM Application)
The application for labor certification is called a PERM Application. The PERM application ultimately answers one question: Is there a qualified United States worker for the position? If there is no qualified United States worker, the Department of Labor will certify the PERM application.
The Department of Labor requires that the employer recruit for the position using a selection of recruitment efforts that the Department of Labor has approved. These include placing ads in newspapers, so the recruitment efforts can be expensive.
The recruitment period takes between two months and six months to complete. The PERM application is submitted to the Department of Labor once the recruitment period is complete. It takes the Department of Labor about six months to certify an unaudited application. If an application is audited, it can eighteen months to two years for a decision to be made.
The Department of Labor requires that the employer pay for the attorney’s fees and advertising costs for preparing and filing the application for labor certification.
The Immigrant Petition for Alien Worker
The employer has 180 days to file the approved labor certification with the United States Citizenship and Immigration Services (USCIS) with the Immigrant Petition for Alien Worker. This step is often called the I-140 because that is the form number of the Immigrant Petition for Alien Worker.
The I-140 asks two questions:
- Can the employer afford to pay the employee’s salary?
- Is the employee qualified for the job?
An employer must submit corporate tax returns and evidence of the employee’s skills with the I-140.
USCIS takes about six months to review an I-140, although you can pay for expedited (premium) processing.
The Application for Lawful Permanent Residence (the Green Card)
Once the priority date is current, the employee applies for lawful permanent residence (the Green Card). If the priority date is current when the employer files the I-140, the employee can apply for the Green Card at the same time. This step is sometimes called the I-485 because that is the form number of the primary application.
The I-485 asks one question: Is there any reason to not give the employee a Green Card? USCIS reviews the employee’s health records and conducts background checks looking for “grounds of inadmissibility” (such as criminal records or an adverse immigration history).
If the employee is married or has children less than 21 years of age, they may apply for Green Cards with the employee.
The typical processing time for Green Card applications is one year to two years. However, the employee may request work and travel authorization while the I-485 is pending.
This three step process is complex with a large number of hard deadlines to follow. Each step builds on the groundwork from the previous steps. Preparing a PERM application without thinking of the I-140 or the employee’s Green Card application (the final step) can create huge problems that range from being expensive and difficult to fix to ultimately barring the employee from ever receiving the Green Card.