If a U.S. employer wishes to hire a foreign-born worker for lawful permanent resident status, the employer should be prepared for a long, arduous process. The green card process for employees involves multiple government agencies and is one of the most confusing and convoluted areas of the law.
The first step of the process is called PERM – the Program Electronic Review Management. The PERM system falls under the jurisdiction of the U.S. Department of Labor (“the DOL”). The process is frequently referred to as the PERM labor certification. Employers must undergo the PERM labor certification process for all employees in the EB-2 (except those employees applying for a National Interest Waiver) and the EB-3 job classifications.
Before a U.S. employer can file an immigration petition for a foreign worker with U.S. Citizenship and Immigration Services (“USCIS”), the DOL must first issue a labor certification. In order to obtain the labor certification, the employer submits a form called an ETA Form 9089. In doing so, the employer will be asking the DOL to certify (1) that there are not enough U.S. workers able, willing and qualified to perform the job at the prevailing wage and that employment of this foreign worker will not adversely affect the salaries and working conditions of U.S. workers.
Indeed, the law requires that there be a bona fide (“good faith”) job opening available to U.S. workers. The employer must be willing to hire the foreign worker on a permanent, full-time basis. The employer cannot tailor the job requirements to the qualifications of the specific foreign worker, but rather must use requirements typically associated with the job, unless the employer is prepared to demonstrate that the “extra” requirements arise from a true business necessity.
The first step in the recruitment process requires the employer to perform a series of good faith activities designed to test the labor market before filing the application. If there are not a sufficient number of U.S. citizens or green card holders who can fill the position, the employer can submit a PERM labor certification application.
PERM regulations are detailed and complicated. An employer must comply with all of the PERM regulations or risk the denial of the application or, perhaps even worse, a DOL audit of the recruitment process. Even though the employer does not submit supporting documents at the time of the PERM filing, it is essential that all required recruitment activities are satisfied. Employers should retain all recruitment evidence for 5 years to make sure they can comply fully with a DOL audit of the process used.
The DOL states that the current processing time for PERM applications is 45-60 days (unless an audit is ordered); however, they usually take about 3 months to approve. If an audit is ordered, the employer has 30 days to fully respond with all requested documents. Failure to reply in a timely manner will deem the case abandoned and may lead to “supervised recruitment” procedures on any future recruitment efforts by the employer. An approved PERM application is good for 180 days and the employer must file the next applications with USCIS within that time frame.
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