The most common ‘first step’ to obtaining permanent residence through an employer is to complete the Labor Certification (also referred to as PERM) process to test the U.S. labor market. The PERM process is required for all Second and Third preference (EB-2 and EB-3) employment based petitions with the exception of those filing under a National Interest Waiver.
The PERM process first mandates that employers receive a prevailing wage determination from the Department of Labor prior to filing the labor certification. Then the employer must complete very specific recruiting requirements including newspaper ads, job site postings, a placement with the state’s workforce agency as well as three additional forms of recruitment. The employer must evaluate all U.S. workers responding to the advertisements to see if they meet the minimum requirements for the offered position. If an employer finds a qualified candidate, there is no requirement to hire that individual. However, the employer may not proceed with filing the PERM application at that time. If, however, the employer fails to find a minimally qualified U.S. worker who is able and willing to accept the job, the employer may file the PERM application with the U.S. Department of Labor.
When the PERM application is approved by the Department of Labor, the employer may then proceed to the next step of the employment-based permanent residency process: filing Form I-140 Immigrant Petition for Alien Worker. If the priority date is current (in PERM cases, the priority date is the date the PERM was filed), the employee may concurrently file the final step in the permanent residency process, the Form I-485, with the employer’s Form I-140. In cases where the preference category is “oversubscribed” with a waiting list for that particular category, an approved I-140 allows employers to extend the H-1B status of an individual employee beyond the six year maximum and, under recent regulations, will also allow the H-4 dependent to apply for work authorization until the preference category is current.
Read more here about U.S. immigration for businesses and professionals. If you are an employer or professional in need of assistance with immigration issues, we welcome you to contact an immigration attorney at Sivaraman Immigration Law to request a consultation.