Many foreign nationals seeking opportunities in the United States do so with the hope of permanently living and working there. One option for permanent residence is an employment-based green card, attainable through a prospective employer. The employer must, however, obtain a permanent labour certification or PERM from the Department of Labour (DOL). The U.S. Citizenship and Immigration Services (USCIS), which considers and issues green cards, seldom considers employment-based green card applications without this certification.
Navigating immigration matters can be very difficult. If you are seeking an employment-based green card, it is best to hire an experienced and knowledgeable US immigration lawyer to get the best possible outcome.
PERM Labour Certification is the first step in obtaining certain categories of employment-based green cards. The program, administered by the DOL’s Employment and Training Administration (ETA), was designed to protect the US by analyzing whether hiring foreign workers would impede similarly capable US workers from obtaining employment. The analysis ensures that the hiring of foreign workers does not negatively impact the working conditions or wages of US workers.
To this end, employers must submit evidence that during the recruitment process, they could not find a suitable candidate within the US workforce.
The PERM Application Process
The PERM application process involves three steps:
- Prevailing wage determination
- Completion and submission of ETA Form 9089
The objective of the recruitment exercise is to provide evidence to the DOL that there is no willing, qualified, and available US worker to take the job for which the foreign worker is being hired. Employers must advertise the role, review resumes, conduct interviews and complete exercises standard to the recruitment process.
Employers must advertise the position with the state’s workforce agency and with at least one popular newspaper in the area of prospective employment on two separate Sundays. They must also place three additional advertisements, selecting ad options from a list of ten recruiting formats.
Recruitment of non-professionals must include two newspaper advertisements and the placement of job orders with the state’s workforce agency. Recruitment activities must take place within the six months leading up to the filing date for PERM but no less than thirty days before.
Employers are required to retain documentation of the recruitment process for the DOL’s assessment.
Prevailing Wage Determination
The DOL makes further efforts to protect US jobs by ensuring that wages paid to prospective foreign workers are the prevailing wages. The prevailing wage is based on the average compensation of equally qualified workers in the same geographic location. Prevailing wage determinations may be obtained from the DOL.
The ETA Form 9089
Once the recruitment process is completed and the prevailing wage is determined, employers may complete and submit ETA Form 9089 with the DOL. Applications may be filed by mail or online. Information required by the DOL includes details on the immigrant worker, the employer and the job offer. Applications must be signed by the employer, the prospective immigrant worker and, if applicable, the person who prepared the form to be valid.
Forms I-140 and I-485
Once PERM certification has been granted, the employer — not the employee — may file Form I-140 (immigrant petition for alien worker) with the USCIS. The form must be filed within 180 days of the certification’s approval. The case will be abandoned if the employer fails to petition the USCIS within that period. Otherwise, if currently residing in the US, the foreign national may file Form I-485 for the adjustment of status. If residing abroad, a DS-260 Immigrant Visa Application may be filed with the US consular overseas.
Legal Assistance for PERM Applications
Hiring a knowledgeable and experienced US immigration lawyer is critical to successfully applying for an employment-based green card. If you are in Montreal and are filing a PERM application, we can help at Silver Immigration.