Labor Certification (PERM) Via Adjustment
Two agency process:
1) Department of Labor (DOL)
2) United States Citizenship and Immigration Services (USCIS)
Three separate filings:
1) Labor certification at DOL
2) I-140 immigrant visa petition at USCIS
3) I-485 adjustment of status (“green card”) at USCIS
In order to file for the permanent residence with USCIS the employer must first obtain a labor certification from DOL. USCIS will issue a green card if the employer is able to obtain a labor certification from DOL based on the fact that the employer has proved that it has been unable to find a sufficient number of minimally qualified individuals to fill specific job opportunities at a specific title, set of duties, education & experience level (i.e., the labor certification is employer, location, and job duties specific). If any of these specific factors changes between the date of filing the labor certification to the date of issuance of the green card this may affect the green card process and may require thee re-filing of the labor certification.
The DOL will issue a labor certification if it is satisfied that based on the employer’s recruitment, the only minimally qualified individual the employer has identified who can fill the position described in the labor certification is the foreign national. This establishes that the foreign national, who is only authorized to fill the position temporarily in a non immigrant status; is able to fill it permanently; after obtaining permanent residence or a green card from USCIS.
To file the labor certification the Employer and Employee must each document the following:
Employee
- Has the experience required to fill the job outside and before joining the employer
- Submits diplomas, mark sheets, and education evaluation to prove education
- Submits reference letters from previous employers to confirm qualifying employment, attorneys will provide the format for the reference letter based on the job requirements
Employer
- Job title, duties, minimum education and experience that are required
- That these requirements are essential in order to perform this job at a minimally adequate level; that they are normal for this job and in its industry
- That the wage is consistent with the prevailing wage established by the SESA
- That the employer has conducted a good faith test of the US labor market via
– 6 required methods of requirement, for
– 60 days, and has waited to file during the additional 30 day quiet period
Timing to Decision
- The employer files electronically at about day 120 after recruitment is completed
- DOL’s Decision confirming no sufficient number of minimally qualified workers found and issuing an approved labor hsr certification.
DOL DECISION CAN BE EITHER:
A. Denial – Option is to file an Appeal/Motion to Reconsider, but
because Time to Decision is 2 years or more, consider re-filing after running additional recruitment
B. Approval – Go to next agency (USCIS) and file I-140 (and I-485 if
priority date is current) time to decision is 6- 12 months at USCIS (without backlogs); 6-12 months + whatever time it takes to clear the backlog in the event of a backlog
C. Audit – employer’s response due to DOL in 30 days;
DOL decision could take an additional 540 days (18 months) to issue. In its response, employer must prove that requirements are common to this industry; essential to its business and consistent with existing hiring practices and also submit third party evidence (ex. Letters from recruiters; competitors; educational institutions, or evaluators)
FINAL DECISION THAT LABOR CERTIFICATION IS APPROVED
(On labor certification approval or after audit response is filed)ATTORNEYS WILL:
- Check if priority date (date your perm case was filed) is current
- If current, File I-140 & I-485 concurrently with USCIS and process is completed in about 6-12 months (without category retrogression or security checks)
- In the event of category retrogression, processing will be extended until category is current again
EB-2/EB-3 Discussion – Category determined by:
a) Employer’s minimum job requirements not by level of education and experience employee possesses
b) Country of birth
EB-2
- MS + 0 or BS + 5 years
EB-3
- BS + < 5 years
SECURITY CHECKS
– In the event of security checks processing will be extended until the checks are completed
PROMOTION:
- At the time the green card is issued it is expected the beneficiary will be in the job described in labor certification as
– advertised
– approved by DOL in the PERM filing, even if processing times are backlogged
- Portability is not automatic and there is no blanket dispensation to “port” to another position at a particular point in the process
- Any change in the job before the green card is issued may require re-filing of the labor certification which can delay the green card process, so it is necessary to be realistic about whether material changes like the following can or should take place; for example,
– changes in location
– promotions
The general rule is that any change in the terms of the labor certification after filing is not permitted. If any change is contemplated the individual should speak with the HR representative and immigration attorney before considering the change.
