PERM
Green Cards > PERM
PERM stands for the Program Electronic Review Management
System. It is the new system that is used for processing labor certification
applications and was incorporated in 2005.
There are three stages that an applicant for an
employment-based green card must complete before becoming a Lawful Permanent
Resident (LPR).
First Stage: Filing the
Labor Application (PERM Green Card) Form ETA 9089, with the Department of Labor
(DOL). The purpose of filing the PERM Form ETA 9089 is to describe the
requirements for the relevant job, describe the work history and experience of
the applicant, and show that there are insufficient U.S. workers who are able,
willing, qualified, and available for the job which will be permanently offered
to the applicant.
Please note that the Department of Labor (DOL)
requires that all legal fees and costs for filing and preparing the PERM Green
Card including the costs for running the advertisements should be paid by the
Employer and not the Employee. That means that the Legal Fees, fees
for costs and
advertising costs for the first stage being PERM application have to be paid by
the Employer and not the Employee.
In order to file the Form ETA 9089, the applicant must
show that there are no U.S. workers who are willing, qualified, and able to
perform the offered job. To demonstrate this, the DOL requires that the company
advertise for the position as described below and keep a careful record of any
applications received. If the company receives an application from a qualified
and willing U.S. worker, the company is required to interview the applicant, and
if he/she is full qualified, the green card application cannot go forward. If
no qualified, willing and able U.S. workers are found through the listed
recruitment methods, the ETA 9089 can be filed.
All recruitment must be completed within the six month
period before the Form ETA 9089 is filed. The employer must keep detailed
records about all recruitment, and must create a recruitment report which
summarizes how many resumes are received from each type of recruitment and the
reasons for rejecting the applicant. The required recruitment consists of the
following:
- Request for Prevailing
Wage from the DOL in regard to the Beneficiary's job title. Once that the
request it is sent to the DOL it can take around one month to get the
Prevailing Wage back from the DOL. The Prevailing Wage is the salary that
the DOL believes is average for the job title. This is the minimum that the
applicant has to paid when he or she receives the green card.
- After the Prevailing Wage
has been determined, the DOL requires that the Employer run advertisements
for the position. The Employer has to advertise through six total forms of
media. Note that three forms of advertisement are mandated and three forms
of advertisement are chosen from a list of many options, as follows:
1)
Required: On the State Workforce Agency (SWA) website for 30 days;
2)
Required: An advertisement needs to be run on 2 consecutive Sundays in
the newspaper of general circulation in the area of intended employment.
3)
Required: Post the Notice of Job Posting (NOJP) for 10 consecutive
business days at the Employer's Place of Business.
4-6)
The employer also needs to advertise through any three of the methods
listed below:
a.
Job search website, i.e. Craigslist or Monster;
b.
Employer’s website;
c.
Job fairs;
d.
On-campus recruiting;
e.
Trade or professional organizations;
f.
Private employment firms;
g.
An employee referral program, if it includes identifiable incentives;
h.
Notice of the job opening at a campus placement office;
i.
Local and ethnic newspapers, to the extent they are appropriate for the
job opportunity; or
j.
Radio and television advertisements.
The employer can file Form ETA
9089 with DOL 30 days after all the advertisements have been run. Thus, all
advertisement must take place between 180 and 30 days prior to filing the Form
ETA 9089.
Note that a Schedule A applicant (a nurse or Physical
Therapist) must file the ETA 9089 form together with the I-140 form, with the
USCIS. The normal recruitment requirement described above, which requires
filings with the Department of Labor, does not apply. The Notice of Job Posting
at the employer’s worksite must be completed, but the employer does not have to
run advertisements in newspapers, on the SWA website, on general job listing
websites, or in any of the other media described above. Note that a Schedule A
applicant must wait 30 days after the Notice of Job Posting has been completed
to file the I-140 application with the USCIS.
Second Stage:
Filing the I-140 application. After the Labor Application Form
ETA 9089 is Certified by the DOL, the Employer has 180 days to file the Form
I-140 with the USCIS. Note that if the employer does not file an I-140 in the
180 day period, the Labor Certification (Form ETA 9089) will expire. The
Certified Labor Certification (Form ETA 9089) has an expiry date on it.
The prior rule was that only when an applicant’s I-140
application had been approved and his/her priority date was current would
an applicant be allowed to file the I-485 (often referred to as “adjustment of
status”, see immediately below). This rule has been changed, and now an I-140
and I-485 Adjustment of Status application (see below) can be filed together,
which is called concurrent filing, if the applicant is in a category that has a
current priority date. Also, an I-485 application can be filed while a
previously filed I-140 application is still pending. Note, however, that the
I-485 application cannot be filed until the priority date becomes current.
Third Stage: When the priority date is
current, the applicant can file the last stage of the Green Card, the Adjustment
of Status (I-485) for him/herself as well as for dependents (spouse and
children).
Therefore, a key issue is whether an applicant’s priority
date is current. There are a limited number of green cards that are issued
every year, based upon country and category. Examples of two categories with
different numbers of assigned green cards are employment-based green cards which
have a minimum requirement of a Master’s degree versus those with a minimum
requirement of a Bachelor’s degree. The Master’s degree required green cards
are in a higher category than the Bachelor’s degree required green cards. The
priority date refers to where an applicant is in the line for receiving a green
card. A current priority date means that there is no wait and an immigrant visa
number is currently available for an applicant. The priority date that is
assigned to an applicant is the date that the Labor Certification is filed for
them (see above, First Stage). For applicants from some countries, especially
India and China, the priority dates are backlogged by years.
The U.S. Department of State
publishes a monthly visa bulletin that lists cutoff priority dates for different
immigration categories and birth countries. Only those applicants with priority
dates before the cutoff date can obtain their green card. The cutoff dates
generally move forward over time as prior cases are processed. However, in
certain cases, such as if a large number of old cases work their way through the
system at about the same time, the cutoff dates can actually retrogress (or roll
back). One example of this was in July 2007, when all priority dates suddenly
became current for a short period. At that time, many applicants filed their
I-485s and the USCIS became overwhelmed. The USCIS then retrogressed the
priority dates, so some individuals who had properly submitted their I-485
applications will have to wait four or five years to have their applications
adjudicated.
Note that
when an applicant files the I-485, he/she and his/her dependents may also file
for Employment Authorization Documents (EADs), which gives work authorization
while the adjustment of status is pending. An I-485 applicant and dependents
can also file for Advance Parole, which is permission to leave and re-enter the
U.S. while an I-485 application is pending.
It is possible to maintain two I-485 applications at
once. For example, an applicant can have one pending I-140/I-485 related to the
applicant’s job, and one based on their dependent status on their spouse’s
I-140/I-485 employment-based application. If one of the I-485s is approved, the
other application must either be withdrawn, or the USCIS will terminate the
extra pending application.
Legal Services:
We can advise you in regard to the PERM process. We can
prepare and file your PERM application with the Department of Labor (DOL). As
per the PERM requirement, we can prepare and run the print and online
advertisements.
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