Application for U.S. Permanent Residence Through Labor Certification (effective March 28, 2005)
Below is a description of the steps involved in applying for permanent resident status through labor certification, i.e. alien employment certification (AEC).
The first step involves a filing of an AEC with the U.S. Department of Labor. This process, known as PERM (Permanent Employment of Aliens) requires a showing by the employer to the Department of Labor that there are no “able, willing, available and/or qualified U.S. workers” for the position, and that applicants for the position could not be trained within a “reasonable period” through “on-the-job” training to perform the job duties.
The process requires the employer to conduct recruitment within 180 days prior to the filing of the application to test the job market in the area of intended employment.
The recruitment for professional positions must include the following:
- Two (2) Sunday ads (in lieu of one Sunday ad, journal ad acceptable);
- State Workforce Agency Job Order;
- Other In-House Media
- Ten Day Posting
- Three of the following:
- Company web posting
- Internet web posting
- Employee Referral Program
- Job Fairs
- On Campus Recruitment
- Private Employment firms
Once recruitment is completed, Employers must review responses before filing application to confirm that there were lawful, job-related reasons for disqualifying each and every applicant. If one of the applicants is qualified, the application cannot be submitted to the Department of Labor.
Applications are approvable if Employer can show after recruitment efforts:
- That there were no U.S. workers “able, willing, available and/or qualified” for the position;
- The requirements for the position are not unduly restrictive and normal for the occupation;
- That the employer is paying prevailing wage or higher (i.e. average of wages being paid to similarly employed individuals in the area of intended employment);
- Applicants for the position could not be trained for the position within a reasonable period of time;
- That the employer’s requirements for the position are the actual minimum requirements and that the position does not include any unduly restrictive requirements, such as a foreign language requirement or an excessive demand for computer languages or operating systems. In the context of this requirement the employer must also establish that the educational and experience requirements for the job are normal for the position.
Anticipated processing time is from a few days to a few months; a Department of Labor (DOL) audit of the application results in longer processing times. The audit process is subjective on the DOL’s part; it is not clear what will trigger an audit. We understand audits are automatically triggered with job opportunities which require foreign language skills; we are not certain what other concerns DOL may have that might trigger an audit. Employers are required to retain the documentation (e.g. applicants’ resumes received, recruitment, and any other documentation support of the AEC) for a period of 5 years. It appears DOL can audit the application even after approval, if the application is “suspect.”
Please note any material change in the terms and conditions of the job may void the application for alien labor certification. Material changes include change in job sites, material changes in duties and promotions (i.e. Engineer to Manager). Please keep this in mind in preparing your job duties.
B. Immigrant Petition (Form I-140) and Adjustment of Status (Form I-485)
Upon the Department of Labor’s certification of the AEC, the employer will file an immigrant petition (Form I-140) with the United States Citizenship & Immigration Services (USCIS) to classify the employee under an employment-based category that will grant the employee eligibility to apply for permanent resident status. The Employer will be required to provide confirmation that it has and had the ability to pay the offered salary since the priority date was established (i.e. since the filing of the AEC with DOL).
Petitions will be filed under either the Eb2 or Eb3 categories. Normally, the employee will qualify for either “third preference, Eb3” as a professional with a bachelor’s degree, being offered a permanent position requiring such a degree, or “second preference, Eb2” where the position requires and the employee has an advanced degree (Master’s degree or higher).
Due to a change in regulations that went into effect on July 31, 2002, simultaneously with the I-140 filing, the employee may file, with USCIS, an application requesting adjustment of status in the United States to permanent resident status (Form-485) for him/herself and eligible family members. This is available only if the applicant’s priority date is current. Updated visa availability information can be found at: http://travel.state.gov/visa/bulletin/bulletin_1360.html. A visa must be available (i.e. priority date current) at the time the adjustment of status application is filed and at the time USCIS is ready to adjudicate the application.
During the pendency of the adjustment application(s), the employee and eligible family members may obtain employment authorization and permission to travel, called advance parole. However, each case must be evaluated on its own merit.
Documents needed at this stage include the following:
- Birth Certificate for all applicants; secondary evidence may be acceptable if no birth record is available upon issuance of government statement specifying there is no record of birth
- Marriage license
- Documents showing termination of previous marriage, if applicable;
Information on obtaining marriage and birth evidence outside the U.S. can be found at: http://www.travel.state.gov/visa/reciprocity/country_pick.htm#I
- Letters confirming the work experienced required in the approved AEC. Please be aware, USCIS may also ask for tax returns and contact information of previous employers;
- Medical Exam from approved USCIS physician. Please note the exam is only valid for one year; please do not proceed with the medical exam until your priority date is current (i.e. visas are available). Information approved U.S. physicians can be found at:
https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV** Please obtain your vaccination/immunization records in advance. We understand if you cannot prove you have had the required vaccinations, the physicians will require you to be re-vaccinated. Effective May 3, 1997, applicants for residency status are required to provide the medical doctor with evidence of vaccinations for a variety of illnesses including mumps, measles, rubella, polio, tetanus, diphtheria toxoids, pertussis, influenza type B and hepatitis B, varicella, haemophilus influenza type B, pneumococcal and any other vaccine preventable disease which may be added to the list.
- Photographs – Information on photograph size can be found at: http://travel.state.gov/passport/pptphotoreq/pptphotoreq_5333.html
Processing times of immigrant visa petitions and adjustment of status applications vary and you find up-to-date information on USCIS processing times at: (https://egov.uscis.gov/cris/processTimesDisplayInit.do?locale=en-US)
Here is our Adjustment of Status questionnaire and checklist: AOS Q & CHECKLIST
In the alternative, the employee may choose to file for a U.S. immigrant visa through the U.S. Consulate in his home country or in the country of last residence. The new INS rule permitting the concurrent filing of I-140 and I-485 does not apply in the context of consular processing. Processing times vary from Consulate to Consulate; please visit the Consulate’s web page for up-to-date information: (http://travel.state.gov/visa/embassy/embassy_4825.html). The Consulate office will not schedule an interview unless a visa is available.