Understanding the PERM Stages for the Employment Based Green Card
(By Timur Edib, Esq.)

The employment-based immigration process consists of three stages before the employee can obtain permanent residency in the United States. The first stage involves obtaining a Labor Certification (LC) from the Department of Labor (DOL) pursuant to the regulations published on December 27, 2004 under the Program Electronic Review Management ("PERM") process. The second stage involves obtaining the approval of an immigrant visa petition for alien worker from the US Bureau of Citizenship & Immigration Services (USCIS) based on the approved LC by the DOL. The third stage involves the employee's application for an Adjustment of Status (AOS) in the United States or application for immigration visa at a US consulate office having jurisdiction over the employee's home country, when the visa quota is open and available for the country and category. Only at the third stage, during the AOS will the employee be able to file for a work authorization and request for a travel document (Advance Parole) pending the LPR (aka “green card”) approval. The Employer is solely responsible for all of the costs associated with Stage 1 and Stage 2 and may not seek any reimbursement or reduce future pay from the employee. During Stage 3, either the employer or the employee may be responsible for the costs involved with obtaining the LPR status, as the employee may also apply for his spouse and unmarried children under 21 years of age.

As of 2007, employers are no longer allowed to substitute workers after a Petition or Application for Labor Certification has been filed, and employers may no longer simply “save” an approved LC for a future candidate. Now, once an LC is approved by the DOL, they are only valid for 180 days, requiring the employer to file their Petition for Alien Worker during that validity period. As a part of the employer’s job offer, they must demonstrate that they are “ready, willing, and able” to hire the alien from day the LC is filed, until the Green Card (LPR) is issued. That window of time could be months, and could be years, based on the Visa Quota, which is determined by the State Department, and made available every month. The Visa Quota and the Visa Bulletin will be discussed below. As of this writing, the minimum time for an employment based green card is 20-24 months. The current quota backlog is four (4) years for the most common EB3 category.

Employment Based Immigrant Visa Categories

There are five (5) categories for filing an Employment Based Petition. The most common and well-known is the Third (3rd) Preference (EB3) category, which requires either a bachelor’s degree or an associate degree. Below is a fuller explanation of the first three EB categories. The EB-4 (religious worker) and EB-5 (Investor) are not discussed in this article.

EB-1: Extraordinary Ability

Aliens with extraordinary ability are those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." In the sciences, this usually requires the achievement of a Ph.D. or equivalent level of academic achievement. In the arts, it will require a clear demonstration of life achievements that meet the extraordinary ability requirements as defined by USCIS guidelines. Aliens in this category are eligible to self-petition and bypass the DOL recruitment (PERM) process. They just need to promise to work in their field for two (2) years if they are approved.

EB-2: Exceptional Ability

The EB-2 classification includes aliens who are "members of the professions holding advanced degrees or their equivalent" and aliens "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States." Advanced degree means either a Master level degree or a Ph.D. level of education. Foreign degrees may be used, as long as an independent evaluator, recognized by USCIS, confirms that the foreign degree is the equivalent of the U.S. degree. In addition, a person with a bachelor’s degree and five (5) years of experience in that degree field is considered equivalent to the Master level. For example, a bachelor’s degree in accounting, and five years of work experience as an accountant would equal a master’s degree. A person with a skill that will benefit the entire United States may be eligible for a National Interest Waiver (NIW) meaning that they can bypass the DOL recruitment (PERM) process, and they can self-petition (they don’t need a sponsor. An example of a NIW, would be a person with a patent for a medicine, a device, or an application that would benefit all of America.

EB-3: Professionals and Skilled Workers

The EB-3 classification includes two sub-groups. The first one, EB-3 for professionals include: Aliens with at least two years of education or experience as skilled worker in a profession that normally requires two years of education; and Professionals with a bachelor’s degree for a position that normally requires the degree for entry into the occupation. The second EB-3 group is unskilled workers which includes “other workers” with less than two years of experience.

The Three Main Stages of the Employment Based Green Card Process

Stage 1: Labor Certification

The DOL implemented the Program Electronic Review Management ("PERM") system in 2007, to use the internet and computer-based file analyses to expedite the review process for immigrant workers seeking permanent residency based on their employments. The PERM process certifies via a Labor Certification (LC) that there are no qualified U.S. workers (U.S. Citizens or LPRs) in the target market area who are able, willing, and available at the time of the petition. During this stage, the employer also affirms that they have the resources to pay the full prevailing wage, as determined by the DOL, and that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. The DOL does a background check on the petitioner to ensure that they are a duly registered business, that they have a history of filing payroll taxes, and that they are in good standing as a legal entity. After careful review and examination of the LC application for Employer Information, Prevailing Wage Information, Wage offer Information, Job Opportunity Information, Recruitment Information, Alien Information and Alien Work Experience, the DOL will either approve, audit, or deny the application.

The first concern is the salary offered. DOL regulations require that the offered salary be equal or greater than the prevailing wage for the position. The DOL maintains a database that is updated every July for the following year. Form 9141 is filed describing the position and the requirements, and a prevailing wage is determined. The response has a unique tracking number that must be used on LC application, and the response usually takes four (4) to six (6) months as of the writing of this article. The prevailing wage does not have to be paid until the green card is approved, and the alien accepts the job and begins working.

Once the DOL certifies the salary to be paid, the employer must conduct a recruitment effort for the position offered to the prospective alien employee prior to filing the LC with DOL. The legal requirements are different depending on the occupation type. However, there are at a minimum two basic recruitment steps conducted at least 30 days but no more than 180 days before filing of the application for every type of occupation.

a. Job Order. The employer will need to place a job order with the SWA (State Workforce Agency) serving the area of intended employment for a period of 30 days. At the end of the 30 days, the SWA will forward all applications they receive, and each candidate’s qualifications will be reviewed. Those that appear qualified will need to be interviewed. If there is a qualified candidate, they process ends, as there is an American worker qualified to do the work.

b. Newspaper Advertisements. The employer will need to place an advertisement on two consecutive Sundays in the newspaper of general circulation with a Sunday edition in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. Whenever an applicant responds to the ads, a list will be made, and all qualified applicants must be interviewed.

c. Additional Recruitment Requirements for Professional Occupation. If the position is defined as a "profession occupation" three (3) additional recruitment efforts must be chosen and completed. These include job fairs, employer' s website, job search website other than employer's, on-campus recruiting, trade of professional organization, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, radio and television.

Filing the LC is a crucial part of the process. Once the recruitment steps are completed, the LC is filed electronically with DOL; this filing date is known as the file’s “Priority Date.” The Priority Date is a very important date, in that it is from this date forward that the employer must establish the ability to hire workers. That means “ready, willing, and able.” It means that they can pay the salary and that a job is always available. The Priority Date is also the date referred to in the Visa Bulletin, as to availability of the visas for filing an application for the green card itself. Since the LC is uploaded electronically, it is not required to file or submit any of the supporting documentation with the LC; however, the employer must retain any related records for five (5) years in the event they are audited by DOL or USCIS.

After DOL initial review of a LC, a computer system will review the application based upon various selection criteria that will allow a problematic application to be identified for audit. Some applications will also be randomly selected for audit regardless of the computer analysis results. Audits usually only require that the evidence collected during the recruitment process be uploaded to the DOL system for verification. Audits require additional time. The DOL had hoped that under the PERM system, non-audited electronically filed application for permanent employment certification would be certified within 60 days from the date of filing, however that process is now taking over 12 months as of this writing.

Stage 2: Filing the Petition for Alien Worker

Within six (6) months of the certification of the LC by DOL, the employer must file a petition with the U.S Citizenship and Immigration Services (USCIS) to have an immigration visa made available to the employee.

At this stage, the employer must show that it has the financial ability to pay the salary. Please note that the USCIS requests solid evidence that the employer had this ability from the date the LC was filed to the time the Green Card is issued. Such evidence may include company’s tax return (with all schedules and attachments) from the year the LC was filed to the current year; (2) a letter from the financial officer confirming the financial ability to pay (applicable only for companies with 100 or more employees); or (3) an annual report, with independently audited financial reports. Additional evidence may include profit/loss statements, bank account records, or personnel records. This information may be kept confidential and not be released to the alien, if requested.

Based on current USCIS processing times, we anticipate that stage 2 will require approximately six (6) months to complete, yet it may take longer. On the other hand, an employer may pay a Premium Processing fee, currently $2805.00, and have the Petition adjudicated within fifteen (15) days. The expedited Petition has no impact on the processing of the other forms filed with USCIS.

Stage 3: Application for Permanent Residence

The application for permanent residence is the last stage of the process and is not discussed in this article as it is unique to each alien, based on their EB category, country of citizenship, family requirements, and if they are going to seek a visa at a consulate or adjust their status in the United States (if in the U.S. in a lawful non-immigrant status).

The timing for filing of the application is guided by the Visa Bulletin, published online by the State Department every month, usually two weeks before the month begins. On the Visa Bulletin, it will list the Priority Dates (date the LC was filed with DOL), for each EB category. The alien can file their paperwork if their “Priority Date” is before the date published in the Visa Bulletin. If the Employment Based Category is “C” or current, the alien may immediately file their application.  If the alien is not in the United States, the State Department will contact the employer and the employee to begin their paperwork when the quota is about to open.