Congress makes available approximately 140,000 immigrant visas for employment-based immigration annually. There are five employment-based “preference” categories, and each preference category is allocated a certain number of immigrant visas (approximately 40,000 for the first three categories). Also, each country is allowed a maximum ceiling per preference category (charged against the individual’s country of birth). Currently, immigrant visa numbers are over-subscribed, which means that there are more people applying for permanent residence than there are immigrant visas available. Therefore, for many applicants there may be a significant waiting period before they are able to file Adjustment of Status (I-485) and/or immigrant visa (DS-230) and are granted lawful permanent resident status.
PERM Labor Certification
The most common employment-based method is through the following three-step process:
- Employer files a PERM labor certification application with the U.S. Department of Labor (DOL).
- Employer files Form I-140 Immigrant Petition with U.S. Citizenship and Immigrant Services (USCIS).
- Employee files Form I-485 Application to Register Permanent Residence or Adjust Status, with USCIS, or alternatively proceeds with consular processing of immigrant visa at a U.S. embassy or consulate.
A certified PERM labor certification application is a finding by the Department of Labor (DOL) that there are not sufficient U.S. workers who are able, willing, qualified, and available to do a specific job that is being offered to a non-U.S. worker. The PERM labor certification application details the terms and conditions of the offered position, including the minimum education and experience requirements for the position.
Prior to filing a PERM labor certification application, an employer must conduct specific recruitment, as outlined by the DOL regulations, to test the U.S. labor market and to determine whether or not there are sufficient U.S. workers who are willing, able, qualified, and available to perform the identified job. The pre-filing recruitment efforts include:
- obtain a prevailing wage determination from the government to ensure that the offered salary meets or exceeds the prevailing wage for the area of intended employment;
- advertise for the position through several media in compliance with the procedures and within defined time frames;
- evaluate applicants’ qualifications; and
- develop and retain recruitment results documentation of the employer’s compliance.
The DOL may audit an application based on a random selection for quality control or upon a selection criteria that allow problematic applications to be identified. If the DOL issues an audit, the employer is then required to submit a signed copy of the ETA Form 9089 and copies of all supporting documentation to the DOL for review to determine the employer’s compliance with the pre-filing requirements.
Alternative to PERM Labor Certification
There are five categories for employment-based immigration and some categories do not require the filing of a PERM labor certification application. If an applicant qualifies for a preference category that does not require a PERM labor certification application, then the lawful permanent resident process is reduced to a two-step process that begins with the filing of a Form I-140 immigrant petition. Employment-based preference categories that do not require PERM labor certification are outlined below and they include:
- Individuals of Extraordinary Ability
- Outstanding Researchers and Professors
- Multinational Managers and Executives
- National Interest Waivers
- Schedule A Occupation