After receiving a suitable job offer, prospective employees who wish to acquire a green card through their employment must generally undergo an application process with the Department of Labor and with the U.S. Citizenship and Immigration Services. With a few exceptions, most employment based green card applications require a U.S. employer to serve as a sponsor. This process is commonly referred to as the Permanent Labor Certification ("PERM") application process. The regulations surrounding the PERM process are lengthy, and the Department of Labor requires strict compliance. For these reasons, it is critical that anyone considering acquiring a green card through employment understand the process thoroughly and consult with an experienced immigration attorney who is familiar with the PERM requirements.
Employer's Requirements
As part of the PERM application process, an employer will need to ensure that the wages offered are equivalent to those normally offered for the same job, and that there are no able, willing, qualified, and available U.S. workers that can fill the position. The appropriate minimum wage is established by the Department of Labor in a document referred to as Prevailing Wage Determination. The employer must be able to demonstrate that they have the ability to pay the offered wage.
In addition to obtaining the minimum wage determination from the Department of Labor, an employer is required to make a good-faith effort to find a qualified U.S. worker that can fill the position This means that even if the prospective employee is the top candidate, if there is a suitable U.S. worker willing to accept the position, the PERM application will be denied. The Department of Labor has outlined recruitment steps that an employer must follow in order to determine whether there are suitable U.S. candidates. If the employer is unable to locate a qualified U.S. worker willing to accept the position, they can then submit the PERM application with the Department of Labor for consideration. As part of their review, the DOL may choose to audit some applications, which can further delay this step of the process.
In total, this application and adjudication process can take anywhere from six months to two years depending on agency processing times.
Obtaining a Priority Date
Upon filing the PERM application with DOL, the employer is assigned a Priority Date. This Priority Date represents the prospective employee's place in line to apply for a green card because an approved immigrant visa petition alone is not enough to proceed - there must also be a visa available at the time of filing.
If the prospective employee is in the United States, it is important to ensure that they maintain non-immigrant status while the application is pending, as the PERM certification process with the Department of Labor does not afford the prospective employee any immigration status. If the PERM application is certified, the employer can file an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS) within 180 days of approval of the labor certification
Entering the U.S.
Once the visa petition has been approved and the Priority Date has become current, the employee can finally file an application for permanent residence or a green card. Spouses and children must also file their own applications.
For prospective employees living outside the U.S., the application must be filed with the National Visa Center and, eventually, an interview will take place at the U.S. consulate abroad. For those living in the U.S., some can obtain their green card through the adjustment of status process filed with, and adjudicated by, USCIS. The National Visa Center will require prospective employees to collect police clearances, submit photographs and documents, and conduct medical exams prior to the consular interview. Once the immigrant visa is issued by the U.S. Consulate abroad, the prospective employee may finally request entry to the U.S. at a border post, airport, or other arrival point. Upon entering the U.S., the green card will be mailed to the address provided.
What to Keep in Mind
Overall, the process of acquiring a green card through employment requires strict compliance with a multitude of regulations that govern the entire process. The process can span years and present important deadlines that, if missed, extend the processing time. For these reasons, hiring an immigration attorney helps you productively work toward acquiring a green card through employment and can ensure that the process goes smoothly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
