Our Business Immigration Practice offers a streamlined immigration approach to processing employment based green card applications. The PERM Labor Application is a very tedious process, from recruitment process, to filing the labor application, to the immigrant petition and green card application. With a PERM Labor Application, if one small detail is overlooked, the entire application can be denied and the employer/employee would face devastating delays and need to start the process again from scratch. We make every effort to avoid any delays and possible problems. We have an attention to detail to makes all the difference. At the same time our immigration attorney closely works with the employer and employee every step of the process to ensure that no details are overlooked. Contact our US PERM Immigration Attorney to discuss how our streamlined approach in combination with our attention to detail can help you.
Five Employment-Based (EB) Preference Categories:
EB-1: First Preference Category allows applicants to apply for a green card without a labor certification. You may be eligible for an employment-based, first-preference visa if you have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Each occupational category has certain requirements that must be met:
- Multinational manager or executive: You must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer. Your petitioning employer must be a U.S. employer. Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.
- Extraordinary Ability: You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required. You must meet 3 of 10 criteria* below, or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal)
- Outstanding professors and researchers: You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education. You must include documentation of at least two listed below** and an offer of employment from the prospective U.S. employer.
*Criteria for Demonstrating Extraordinary Ability: You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts
** Examples of Documentary Evidence That A Person is an Outstanding Professor Or Researcher
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require their members to demonstrate outstanding achievement
- Evidence of published material in professional publications written by others about the alien’s work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
EB-2: Second Preference Category applies to professionals holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. This category requires a labor certification. Below are the occupational categories and requirements:
- Advanced Degree: The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.
- Exceptional Ability: You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” You must meet at least three of the criteria below.*
- National Interest Waiver: Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. You must meet at least three of the criteria below* and demonstrate that it is in the national interest that you work permanently in the United States.
*Exceptional Ability Criteria
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
EB-3: Third Preference Category applies to skilled laborers, either with a bachelor’s degree or a minimum of two years of professional work experience, and all other unskilled laborers. This category includes Schedule A Nurses and Physical Therapists as the minimum degree requirement is a bachelor’s degree. This category requires a labor certification.
EB-4: Fourth Preference Category refers to Special Immigrants including religious workers, battered spouses, medical doctors who have practiced since 1978 and long-term US government workers abroad. This category does not require a labor certification.
EB-5: Fifth Preference Category refers to immigrant investors who will invest a minimum of $1 million in the United States and permanently employ at least 10 US workers or those who invest a minimum of $1/2 million in a targeted employment area. This category does not require a labor certification.
PERM Labor Certification Process
PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position. Employment-Based Green Card Application involves the following three steps:
- PERM Labor Certification Process:
- 30 Day PERM Labor Certification Recruitment and Advertisement Period;
- 30 Day Mandatory Waiting Period (from the last date of advertisement and/or recruitment);
- File PERM Labor Application Online with the US Department of Labor or Directly File with either the Atlanta Processing Center or the Chicago Processing Center (at the end of the 60 day PERM process);
- File I-140 Immigrant Petition for Alien Worker;
- File I-485 Application to Register Permanent Residence or Consular Processing at US Consulate Abroad once your Priority Date is current for your employment-based preference category is current.
The Certifying Officer (CO) can audit the case if s/he finds the case suspicious either in its content, recruitment activities, or the authenticity of the job opportunity. The CO can also randomly select cases for auditing. The employer will have to timely submit all requested documents to address the CO. If the employer does not respond to the audit request, the case is deemed abandoned. We do not recommend not responding to an audit since the CO may see this as the employer’s refusal to auditing. Then CO may determine that the employer may be required to conduct “supervised recruitment” for any future labor certification the employer tries to file for up to two years.
At the same time, any “restrictive job requirements” such as a language requirement will automatically trigger an audit from the CO. This audit can be properly responded to and overcome with the proper documentation to establish the “business necessity” of the specific job requirements. For example, we can clearly establish business necessity of the a language requirement if the employee is required to use the language for more than 50% of his day-to-day job and has supporting documentation in the form of correspondences and attestations from colleagues and clients attesting to this fact. We can also show the nature of the business alone requires the language, such as a translating service requiring its employees to speak a specific language.
On December 1, 2007, we advised our clients about the increase in PERM Audits being issued by the Department of Labor. We advised how the Audits are usually related to specific job requirements or job duties that are not the typical job requirements and/or job duties for that particular job. However, more recently the Department of Labor are subjecting all PERM Labor Applications to strict scrutiny especially if the job requirements and/or job duties are not consistent with what is listed for that particular job by the Department of Labor’s Occupational Handbook.
January 2008, the Office of the Foreign Labor Certification released Selected Statistics on the PERM Program confirming the significant number of PERM Audits. For the FY 2008 (October – December 2007), the Department of Labor reported that the PERM Audits increased by 44%, meaning that 44% of the PERM applications were pending audit review by the Department of Labor.
In the past two months, our office has received several inquiries regarding these PERM Audits. We advised the greater need for clients to carefully prepare and retain all advertisement and recruitment measures for their PERM applications. We also advised clients seeking to start a PERM application to seek the legal expertise of an immigration attorney in order to ensure, avoid, and prepare for the possibility of being issued a PERM Audit.
Please do not hesitate to contact our office for a free initial consultation. If you, a friend, or an employee, recently filed a PERM Labor Application and received an “Audit,” you should not attempt to respond to the Department of Labor without obtaining experienced legal advice. Or if you are getting ready to file a PERM Labor Application, you should be aware of this increasing scrutiny by the Department of Labor and carefully prepare your application.
Even though we are not required to provide the Department of Labor with any of the PERM Recruitment or Advertisement documentation; the CO can at anytime request this information in the future and therefore the employer retain all documents for at least five years. The employer should carefully prepare the PERM documentation, just in case an Audit is issued:
- Recruitment Summary Report
- Copies of all recruitment and advertisement such as:
- Original Tear Sheets for Two Consecutive Sunday Advertisement
- Original Tear Sheet for Weekday Advertisement
- Original Job Postings (Note: should have the proper national processing center)
- Original Prevailing Wage (Note: initial fax request to the DOL and the DOL issued wage)
- 30 day Job Order (Note: should have date stamped with open date and closed date)
- Online Job Posting with Job Search Engine (Note: should have date stamp in print outs)
- Original Employee Referral Program (Note: should have an incentive for referrers)
- Copies of all resumes received including completed interview sheets
- Copies of alien’s credentials (resume, degrees, certifications, etc.)
- If the job required any special requirements, the employer should also prepare and attach documentation for “business necessity.” Specifically, the employer should prepare:
- A business necessity letter
- Documentation that the alien meets this special requirement
- Documentation that this special requirement is “required” for the position given the nature of the job alone or documentation that the special requirement is in fact “normal” for the industry through comparable job postings