The Employment-Based Permit: Your Comprehensive Step-by-Step Guide - Reddy Neumann Brown PC

The employment-based permit procedure is a multi-step procedure that permits foreign nationals to live and work completely in the U.S. The procedure can be complicated and prolonged, but for those seeking long-term residency in the U.S., it is an important step to attaining that objective. In this short article, we will go through the steps of the employment-based permit process in information.

Step 1: PERM/Labor Certification

The PERM/Labor Certification process is normally the primary step in the employment-based permit procedure. The procedure is designed to ensure that there are no certified U.S. employees offered for the position which the foreign employee will not adversely affect the salaries and working conditions of U.S. workers.

Submit the Prevailing Wage Application

The company starts the PERM process by preparing the task description for the sponsored position. Once the job details are completed, a prevailing wage application is sent to the Department of Labor (DOL). The dominating wage rate is specified as the average wage paid to similarly used workers in a specific profession in the location of designated employment. The DOL issues a Prevailing Wage Determination (PWD) based upon the specific position, job responsibilities, requirements for the position, the area of intended work, travel requirements (if any), among other things. The dominating wage is the rate the employer must at least use the irreversible position at. It is also the rate that should be paid to the worker once the green card is received. Current processing times for prevailing wage applications are 6 to 7 months.

Conduct the Recruitment Process

PERM guidelines require a sponsoring company to check the U.S. labor market through various recruitment methods for "able, willing, certified, and readily available" U.S. workers. Generally, the company has 2 alternatives when deciding when to begin the recruitment procedure. The company can begin advertising (1) while the prevailing wage application is pending or (2) after the PWD is provided.

All PERM applications, whether for a professional or non-professional occupation, require the following recruitment efforts:

- 1 month job order with the State Workforce Agency serving the area of desired work;
- Two Sunday print advertisements in a paper of basic circulation in the area of designated work, most suitable to the occupation and probably to bring actions from able, willing, qualified, and available U.S. employees; and
- Notice of Filing to be posted at the job website for a period of 10 successive service days.

In addition to the compulsory recruitment discussed above, the DOL requires 3 extra recruitment efforts to be published. The employer needs to select 3 of the following:

- Job Fairs
- Employer's company website
- Job search website
- On-Campus recruiting
- Trade or professional company
- Private work companies
- Employee referral program
- Campus placement workplace
- Local or ethnic paper; and
- Radio or TV ad

During the recruitment procedure, the employer may be examining resumes and performing interviews of U.S. employees. The employer should keep in-depth records of their recruitment efforts, including the variety of U.S. workers who made an application for the position, the number who were interviewed, and the reasons they were not worked with.

Submit the PERM/Labor Certification Application

After the PWD is issued and recruitment is complete, the company can send the PERM application if no competent U.S. employees were found. Currently the DOL is taking 8 to 9 months to process PERM applications after submission. The day the PERM application is filed develops the beneficiary's priority date and determines his/her place in line in the green card visa queue.

Respond to PERM/Labor Certification Audit (if any)

A company is not needed to send supporting documentation when a PERM application is filed. Therefore, the DOL implements a quality control process in the kind of audits to guarantee compliance with all PERM guidelines. In the event of an audit, the DOL normally requires:

- Evidence of all recruitment efforts carried out (copies of advertisements put and Notice of Filing);.
- Copies of applicants' resumes and finished employment applications; and.
- A recruitment report signed by the company describing the recruitment actions undertaken and the outcomes accomplished, the variety of hires, and, if suitable, the variety of U.S. applicants declined, summarized by the particular lawful job-related reasons for such rejections.

If an audit is released on a case, employment 3 to 4 months are contributed to the overall processing time of the PERM application.

Receive the Approved PERM/Labor Certification

If the PERM application is authorized, the company will get it from the DOL. The authorized PERM/Labor Certification confirms that there are no qualified U.S. employees offered for the position and that the recipient will not adversely affect the wages and working conditions of U.S. employees.

Step 2: I-140 Immigrant Petition

Once the PERM application has actually been authorized, the next action is to file an I-140 immigrant petition with U.S. Citizenship and Immigration Services (USCIS). The petition needs to include the approved PERM application and evidence of the beneficiary's credentials for the sponsored position. Please note, depending on the preference classification and nation of birth, a recipient may be eligible to submit the I-140 immigrant petition and the I-485 of status application simultaneously if his/her priority date is current.

At the I-140 petition phase, the employer must likewise demonstrate its capability to pay the recipient the proffered wage from the time the PERM application is filed to the time the permit is issued. There are 3 ways to demonstrate capability to pay:

1. Evidence that the wage paid to the recipient is equal to or greater than the proffered wage (pay-stubs, W-2s);.
2. Evidence that the business's net earnings amounts to or higher than the proffered wage (annual report, tax return, or audited financial statement); OR.
3. Evidence that the company's net properties amount to or higher than the proffered wage (yearly report, income tax return, employment or audited monetary statement).

In addition, it is at this phase that the employer will pick the employment-based preference classification for the sponsored position. The category depends upon the minimum requirements for the position that was listed on the PERM application and the worker's qualifications.

There are a number of categories of employment-based permits, and each has its own set of requirements. (Please note, some categories might not require an authorized PERM application or I-140 petition.) The classifications consist of:

- EB-1: Priority Workers.
- EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability.
- EB-3: Skilled Workers, Professionals, and Unskilled Workers (Other Workers).
- EB-4: Certain Special Immigrants.
- EB-5: Immigrant Investors

After the I-140 petition is submitted, USCIS will examine it and may request additional details or paperwork by providing an Ask for Evidence (RFE).

Step 3: Permit Application

Once the I-140 immigrant petition is approved, the beneficiary will examine the Visa Bulletin to figure out if there is an offered green card. The real permit application can just be filed if the recipient's concern date is current, indicating a permit is right away available to the beneficiary.

Monthly, the Department of State publishes the Visa Bulletin, which sums up the availability of immigrant visa (permit) numbers and shows when a green card has become available to a candidate based upon their preference classification, nation of birth, and concern date. The date the PERM application is submitted establishes the beneficiary's priority date. In the employment-based migration system, Congress set a limitation on the number of green cards that can be issued each year. That limitation is presently 140,000. This indicates that in any given year, the maximum number of permits that can be released to employment-based candidates and employment their dependents is 140,000.

Once the recipient's concern date is current, he/she will either go through modification of status or employment consular processing to receive the permit.

Adjustment of Status

Adjustment of status includes getting the permit while in the U.S. After an adjustment of status application is submitted (Form I-485), the recipient is alerted to appear at an Application Support Center for biometrics collection, which usually includes having his/her photo and signature taken and being fingerprinted. This information will be used to carry out necessary security checks and for eventual creation of a permit, work permission (work authorization) or advance parole document. The beneficiary may be alerted of the date, time, and place for an interview at a USCIS workplace to answer questions under oath or affirmation concerning his/her application. Not all applications require an interview. USCIS officials will evaluate the beneficiary's case to determine if it meets one of the exceptions. If the interview is effective and USCIS authorizes the application, the beneficiary will get the permit.

Consular Processing

Consular processing involves making an application for the permit at a U.S. consulate in the beneficiary's home nation. The consular workplace sets up a visit for the beneficiary's interview when his/her priority date ends up being existing. If the consular officer grants the immigrant visa, the recipient is given a Visa Packet. The recipient will pay a USCIS Immigrant Fee which is utilized by USCIS to process the Visa Packet and produce the permit. The recipient will provide the Visa Packet to the U.S. Customs and Border Protection (CPB) officer at the port of entry. The CBP officer will check and figure out whether to confess the beneficiary into the U.S. If admitted, the recipient will receive the green card in the mail. The green card works as evidence of long-term residency in the U.S.