Effectively Navigating the Complex Maze of the PERM Process

Posted by Nishu Sharma | Sep 02, 2022 | 0 Comments

U.S. Immigration law provides an individual with various ways to become lawful permanent residents (get a Green Card) through employment in the United States of America. These employment-based (E.B.) “preference immigrant” categories include:

  • First preference (EB-1)– priority workers
    • Persons with extraordinary ability in the sciences, arts, education, business, or athletics;
    • Outstanding professors and researchers; or
    • Certain multinational managers and executives.
  • Second preference (EB-2)– Persons who are members of the professions holding advanced degrees or who have exceptional ability in the arts, sciences, or business (including requests for national interest waivers). 
  • Third preference (EB-3)– skilled workers, professionals, or other workers.

Some immigrant visa preferences (EB-2/EB-3, other than EB-2 NIW) require you to have a job offer from a U.S. employer. This employer will be considered as your sponsor. Before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved permanent labor certification from the U.S. Department of Labor (DOL). A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. The DOL labor certification verifies the following:

  • There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage in the area of intended employment
  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers

Accordingly, Second Preference EB-2 (Except National interest waiver) and Third Preference EB-3 categories require a permanent labor certification to be issued by the Department of Labor. Moreover, for those with exceptional ability defined by the Department of Labor (widespread acclaim and international recognition) or certain professional nurses and physical therapists, the employer submits the petition to USCIS with an uncertified ETA Form 9089 for consideration as Schedule A.

Obtaining permanent labor certification is the second step in a series of steps that an employer must complete before an individual can get a Green Card in the preference categories Second & Third through employment in the United States of America.

Step 1 in the PERM Process first requires establishing essential details of the job that the employee is being sponsored for and drafting the advertisement, the Prevailing Wage Determination (ETA-9141) is filed through the FLAG System, and the employer conducts the recruitment. The Prevailing Wage Determination sets the minimum wage the employer needs to pay in the specified geographic location for the intended position. PWD (Prevailing Wage Determination) is currently taking 7-8 months to be certified by the DOL (Department of Labor). Sansha Law Office helps its clients finalize the job details (Job title, job duties, minimum education and experience, job location, etc.). Once the job details are finalized, we draft the advertisement, fill out the Prevailing Wage Determination form and submit the same on the FLAG system. We also guide our clients through the mandatory and additional recruitment steps the employers must complete. The mandatory recruitment steps include posting a job order with the State Workforce Agency and a Print Newspaper Advertisement in the highest circulation newspaper. Also, the employer must select three additional recruitment steps from the alternatives listed in paragraph(s) (e)(1)(ii)(A)-J of 20 CFR § 656.17(e). The recruitment process needs to be finished within a specified period.

As discussed above, Step 2 in the PERM Process involves filling out and submitting ETA Form 9089 through the Foreign Labor Certification Permanent Online System. Once the employer finishes the recruitment process and prepares the recruitment report described in 20 CFR § 656.17(g)(1), Sansha Law Office PLLC will fill out the ETA Form 9089. The recruitment report describes 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. Following the review of the filled-out ETA Form 9089, we submit it through the Foreign Labor Certification Permanent Online System. Currently, the Department of Labor (DOL) is taking 8-9 months to certify ETA Form 9089, which allows an employer to hire a foreign worker to work permanently in the United States of America. However, if the Department of Labor (DOL) issues an Audit, then certification of the ETA Form 9089 can take anywhere between 10-12 months.

Step 3 involves filing an I-140 petition with USCIS following the certification of the ETA Form 9089. At this step, the employee needs to show that he is qualified for the job, and the employer must demonstrate an ability to pay the offered wage as of the priority date and continue until the employee obtains lawful permanent residence status. The employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage. Sansha Law Office PLLC will fill out and submit Form I-140 to USCIS along with the documents provided by the employee and the employer per our request. Currently, USCIS is taking 6-7 months to adjudicate the I-140 petition; however, if you pay an extra $2500, it can be adjudicated within 15 calendar days.

Finally, Step 4 involves filing an I-485 Application or DS-260 depending on the priority date being current and whether the employee/person is in the United States of America. Once USCIS approves the I-140 petition, Sansha Law Office will initiate the I-485 or DS-260 filing depending on whether the priority date is current and whether the employee/person is within the U.S. The spouse or unmarried child under 21 years of age of an employment-based principal applicant may apply for a Green Card as a derivative applicant. Currently, USCIS is taking 8-10 months to adjudicate the I-485 application. Within 3-4 months of filing the I-485 application, USCIS issues work authorization and travel document. Unlike the I-485 application, which is filed with USCIS, DS-260 needs to be filed with the NVC (National Visa Center), and then NVC takes 9-11 months to process the application. Once the application is approved, the consulate stamps an immigrant visa on the passport of the Beneficiary, and then once the Beneficiary enters the U.S., they are issued Green Card.

As you can see from the above discussion, the PERM Process is a multi-step time-sensitive process; accordingly, it is always recommended that one should engage the services of an Attorney/law firm with expertise in the PERM process. Sansha Law Office has assisted multiple employers in the PERM Process. We will individually explain/guide you through all the steps of the PERM process and will simplify the complex procedure step by step. We believe in providing a personalized strategic plan at a reasonable cost so that you reach your goal quickly without hurting your wallet.

We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.

About the Author

Nishu Sharma

Ms Nishu Sharma is the founder and Managing Attorney of SanSha Law Offices PLLC. It was founded on the principle and commitment to serve the people with the best service that we can provide. The firm has served clients from Texas and other states of the US. She has handled all kinds of complex im...

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