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Applying for a Green Card Through Your Employer

employment based green card

Applying for a Green Card Through Your Employer: employment-based permanent residence

The employment-based permanent residence process is generally comprised of three phases:

  1. PERM Labor Certification: Recruitment and Prevailing Wage Determination
  2. I-140 Application for Immigrant Visa and Proof of Ability to Pay
  3. I-485 Adjustment of Status

The PERM labor certification:

The PERM labor certification includes 2 major steps:

  1. U.S. Labor Market Test: First the employer is required to participate in a process to test the U.S. labor market by recruiting to determine if there are any able, willing, available, and qualified U.S. workers for the position to be offered to the foreign national. Recruitment is just like it sounds, the employer must advertise the position and review resumes for more than 30 days, but less than 180 days, prior to filing the application to ensure that there are no other qualified U.S. workers available. Advertising must include a Sunday newspaper listing unless no such listing is available in the area. This process to include copies of advertising placed, resumes and review notes must be documented. There is no listing of acceptable journals or publications for recruitment.
  2. Prevailing Wage Determination: The employer is also required to offer at least the prevailing wage for the position, as determined by the DOL, based on the job requirements and location of employment. A prevailing wage determination from DOL must be obtained before filing the PERM application once recruitment has been conducted.

An immigration attorney may not determine minimum job requirements or review resumes on behalf of the employer; however, an attorney can provide checklists to guide the process and ensure compliance, review advertising to ensure it is sufficient, provide resources to help employers articulate job requirements and submit to the DOL for a prevailing wage determination for the position based on the employer’s job requirements.

At a minimum, it will take about 60 days for an employer to engage in the required recruitment process. Given the additional time that it typically takes to prepare the minimum requirements for the job and obtain the prevailing wage determination, the entire process may take about four to six months to file the PERM application with DOL provided that there were no able, willing, available and qualified U.S. workers and also provided that there were no layoffs in the location of employment that involved a position that is the same or similar to the position offered to the foreign national.

Once the PERM application is filed with DOL, it may take the DOL several months to adjudicate the application. If DOL audits the PERM application, the employer will have thirty days to respond and it goes back in the processing queue which may take an additional year to be processed by the DOL. Processing times vary based on backlogs and may be found on the DOL website located at https://icert.doleta.gov/.

The DOL regulations (20 C.F.R. §656.12(b)) expressly prohibit an employee from paying for any fees and costs associated with the PERM labor certification application process if an attorney represents both the employer and employee which is typically the situation in almost every case. Therefore, employers may generally not require employees to pay for any portion of the cost for this step. Yes Employers, this is sunk cost in an employee, just like costs you incur to recruit and train a new employees who may leave soon after starting. It can take well over a year for this first phase to be completed.

Contributed by Svetlana Prizant, an Award Winning New York Immigration Lawyer:

Call or Visit Prizant Law Today At:
Prizant Law
118-21 Queens Blvd Suite 507
Forest Hills, NY 11375

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