Green Card Step 1: PERM Labor Certification Application

For most applicants, the green card process will involve three separate steps. Green Card Step 1 is the PERM labor certification application. The purpose is to see if a qualified and willing U.S. worker is interested in the applicant’s position. One nice aspect of this process is that an employer can sponsor an employee for his or her present position or a future position (if a promotion is anticipated) or a prospective employee who is anywhere in the world, whom they would like to hire at a later date. The PERM application is filed with the U.S. Department of Labor.

Ms. Troy updates herself on a weekly basis on new PERM developments, via memos, legal discussion boards and other documentation. Our office consistently receives PERM approvals for this reason. Successful cases are from a wide variety of industries including software/IT, education, restaurants/entertainment, accounting and medical/counseling/rehabilitative. Our success rate includes complex cases involving a combination of degrees, degree equivalents from education and experience, language requirements, licensing and professorial special handling. We prepare cases for small to large companies, public, nonprofit and private agencies.

The Consultation

Before starting the green card process, the employer and employee should carefully review the legal and documentary requirements of ALL three steps of the green card process up front with their attorney. Careful planning will mean the difference between denial and approval, often years down the road. Once this consultation is complete, the employer can then start the PERM process by identifying the prevailing wage and testing the labor market.

Prevailing Wage

The employer files a request with the Department of Labor, outlining the position details. Within a few months, DOL will assign a required wage for the position. The employer must agree to pay the wage as soon as the green card is granted but must also be able to demonstrate the ability to pay the wage from PERM filing onwards. Once this wage is set, the employer can move forward with classified ads to test the labor pool.

Classified Ads

To test the labor market, the employer must advertise over a period of at least thirty days before filing the application. This “good faith” recruitment must include two Sunday ads in the newspaper of highest circulation for that city; an internal posting; and a 30 day ad on the State’s online job bank. Employers are then allowed to choose three alternative forms of recruitment from a list of ten options: commonly used options include employee referral program; web based private classifieds; employer’s website and campus recruitment.

Resume Review and Filing

During and after the recruitment period, the employer reviews all U.S. worker resumes that are submitted during the recruitment period. If a person appears qualified on the face of the resume, the employer must contact the applicant for an interview to further determine eligibility. PERM resume review does not follow normal hiring practices. However there are several legitimate reasons to disqualify applicants, which include: he or she is not a U.S. worker; does not meet the minimum educational and experience requirements; cannot satisfactorily perform the job duties; or is not interested in the position.

If after resume review and a controlled, good faith vetting process, a qualified and willing U.S. applicant is not located during the advertising period (and a 30 day wait time), the PERM application is then filed with the Department of Labor. Processing times currently range from 90 days to about one year or more if DOL wants more information about the case. Once approved, the employer moves on to step two: the I-140 petition.

Advantages to Filing the PERM Application

The great advantage for all applicants regardless of visa category, is that they are on their way to obtaining a green card. However, the PERM filing provides an additional, great benefit to H-1B applicants and their U.S. employers. Normally a person can only retain H-1B status for six years and then must leave the United States for at least one year, before applying for H-1B status again. If the employer files the PERM application before the employee’s last last 365 days of H-1B status, the applicant will be eligible for yearly H-1B extensions even though they have used up the entire six years normally given. Because this benefit has a strict filing deadline and the PERM process takes many months to prepare and file, I highly recommend that the PERM process is started in the early stages of a person’s H-1B status. At the very least, the process should start no later than the beginning of year four, in order to ensure sufficient time for PERM filing by the end of year five.

Can I Skip the PERM Labor Certification Application?

Some foreign professionals do not need to test the labor market via the PERM labor certification application. Instead these applicants skip directly to the I-140 petition. These applicants include: O-1 workers of extraordinary ability, Outstanding researchers and scholars and Multinational executives and managers (This category is most commonly used by L-1A managers and executives, but can be used by some E-2 and H-1B applicants as well.)

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