GETTING A GREEN CARD THROUGH EMPLOYMENT – THE “BLOOD AND GUTS” OF THE PERM LABOR CERTIFICATION PROCESS:

While there are many ways to get the green card in the U.S., the most common one in the employment-based arena is using the PERM Labor Certification Process. A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To improve the operations of the permanent labor certification program (PERM), ETA published a final regulation on December 27, 2004, implementing a new, re-engineered permanent labor certification program, effective March 28, 2005. This new electronic program has improved services to our various stakeholders. As of March 28, 2005, ETA Form 750 applications were no longer accepted under the regulation in effect prior to March 28, 2005, and instead new ETA Form 9089 applications had to be filed under the new PERM regulation at the appropriate National Processing Center (NPC). Applications filed under the regulation in effect prior to March 28, 2005, continued to be processed under the rule in effect at the time of filing at an appropriate Backlog Elimination Center until such time as the backlog was eliminated. Where an employer chose to withdraw an application filed under the regulation in effect prior to March 28, 2005, and still in process, and to refile an application for the identical job opportunity under the re-file provisions of the PERM regulation, the employer was permitted to use the previously filed ETA Form 750 application filing date.

DOL processes Applications for Permanent Employment Certification, ETA Form 9089, with the exception of Schedule A and sheepherder applications filed under 20 CFR ยง656.16. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is certified by DOL, it should be submitted to the USCIS service center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.

The PERM process is very detail oriented and it is important to be sure that the individual that prepares the PERM application be intimately familiar with the nuances that can impact the favorable or unfavorable outcome of the case. For example, if an India Citizen has a three year degree, it is critical to explain the equivalence in detail. Also, it is very important, from the outset of the case to undertake an analysis as to whether or not the employer will have the “ability to pay” the Federally Mandated Prevailing Wage.

There are numerous steps that have to be undertaken in connection with the PERM Labor Certification