Obtaining permanent residency through the PERM (labor
certification application) process is a lengthy, multi-step procedure taking anywhere from two to three years. The thrust
of the process is to determine whether there are any qualified U.S. workers (defined as U.S. citizens or permanent residents)
for the position. If no qualified U.S. workers exist, then the foreign national is able to proceed towards permanent residency.
Set forth below are the various steps required for this procedure.
FILING THE LABOR CERTIFICATION APPLICATION
This process requires significant personal recruitment efforts and processing times are estimated to be between 45
and 60 days for electronically filed applications. Employers can evidence their recruitment efforts, which must have
taken place within the previous six month but not less than thirty days of filing, through the following means:
2 print ads are mandatory
For jobs classified as
professional by the Department of Labor, additional
recruitment must
be through three of the following:
a. job fairs
b. employer’s
website
c. job search web site
other than employer’s
d.
on-campus recruiting
e. trade
or professional organizations
f.
private employment firms
g. an
employee referral program
h.
a notice of the job opening at a campus placement office
i. local and ethnic newspaper
j. radio and television advertisements
If the Department of Labor believes that sufficient recruitment has taken place, the Department of Labor
will hopefully certify the application.
SPECIAL HANDLING
College/university teachers
may process their labor certification applications through a process known as Special Handling. The requirement for Special
Handling is that the college/university can document a competitive selection process within 18 months of the foreign national’s
formal selection. The college/university must have placed an advertisement in a national publication as well as posted the
job internally at the college/university. Unlike the labor certification application process, the college/university is able
to hire the more qualified applicant.
As long as the recruitment has occurred within the previous 18 months,
the Department of Labor should not require any further advertising and should certify the application.
FILING
THE I-140 (PETITION FOR IMMIGRANT WORKER)
The next step toward permanent residency is filing the I-140
petition with the appropriate USCIS Service Center. At this point, the USCIS has two concerns. The first concern is that the
employer has the ability to pay the stated wage. The second concern is that the foreign national satisfies all of the requirements
set forth on the labor certification application and has documentary evidence thereof. Therefore, if prior experience in a
specific set of skills has been required on the labor certification application, the foreign national must obtain letters
from prior employers establishing that the foreign national obtained this experience.
FILING FOR PERMANENT
RESIDENCY
Foreign nationals who are applying for permanent residency based upon employment must file
their applications with the USCIS Service Center having jurisdiction over where the foreign national resides. Interviews,
if required, will continue to be held at the local USCIS office.
At the time of filing, the foreign national will
have to be able to establish maintenance of legal status. This means that the foreign national's passport must have been
current for the duration of the period spent in the United States and that the foreign national maintained nonimmigrant status.
Unauthorized employment, gaps in employment while an H-1B or failure to be a full-time student in good standing are all circumstances
constituting a failure to maintain legal status.
