U.S. Immigration Lawyer - Law Offices of Ursula Lotwala, Esq.

Lawful permanent residence is an "immigrant" status (not a U.S. citizenship). This status entitles the applicant to live and work in the United States permanently. Obtaining permanent residence through employment sponsorship involves going through the following three phases:

Foreign nationals who are skilled (having two or more years of training or experience), or educated (having an advanced degree or its equivalent) and who have job offers have the possibility to immigrate to the United States. Unless the employee is already legally authorized to work in the U.S., the prospective employer must first obtain a labor certification and approval of an immigrant worker petition before hiring. The labor certification process, also known as PERM, is one of the most complex of all immigration-related procedures.

Phase 1 - Labor Certification ("PERM")

The procedure for processing a labor certification is known as the Program Electronic Review Management System, or PERM. The PERM labor certification process has replaced the Reduction in Recruitment (RIR) and Traditional labor certification programs. Under PERM, the amount of time required to process recruitment and labor certification applications has been significantly reduced.

During the PERM process the prospective employer must be able to demonstrate a shortage in the U.S. labor market for the sought-after position, while the foreign national must be able to prove that he/she qualifies for the offered position. The PERM application describes the job duties, salary, minimum experience and education requirements needed to perform these job duties. A valid prospective employer-employee relationship must exist. However, the entire PERM process can be done for immigrants who are either inside or outside the U.S.

The employment requirements must be normal to the occupation. They should meet the employer's business needs, but cannot be too narrow, or tailor-made specifically for the foreign worker. The employer must be prepared to offer the prospective employee the “prevailing wage,” as determined by the Department of Labor (DOL), or else justify why the wage should be lower. In addition, the employer may need to demonstrate the company's ability to pay the prevailing wage, which may require submission of a financial statement or tax return.

The prospective employer must also diligently test the labor market by seeking out qualified U.S. workers to fill the offered position. Any responses to the employer's recruitment efforts must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.

An approved labor certificate serves as proof that there is a shortage of U.S. workers. However it is only a first step in the permanent residency (“green card”) process. It does not give authorization to a foreign national to legally remain in the U.S., grant permission to work in the U.S., nor guarantee permanent residency.

Once the labor certification is approved by DOL, the employer will need to file an immigrant visa petition on their employee's behalf by filing Form I-140. The petition and supporting documents will be filed at the appropriate Service Center for the employer’s jurisdiction. To check the current Processing Times for your jurisdiction, click here.

Phase 3 (Consular Processing Abroad or "Adjustment of Status")

Upon approval of the petition, an employee will be eligible to apply for permanent residence at a U.S. consulate abroad or at a local U.S. Citizenship and Immigration Services (USCIS) office, if the employee is still in valid Nonimmigrant status and if the quota is "current" in the appropriate employment-based preference category. In this final phase, emphasis will be based on the employee's overall qualifications to immigrate to the U.S., such as, whether the employee has a criminal record, or whether the employee has a contagious disease, etc. A qualified immigration attorney should, of course, assist the employee (and his family) with this process through the final interview.

In the past, a quota system existed, which was determined by the number of immigrant visas the State Department allocated under various employment-based "preference" categories. The employee's place in line in the quota system is "reserved" as of the date the EDD accepts the initial LC application. This is called the "priority date" which can be tracked each month from the State Department published releases. The quota varied depending upon whether a degree and/or two years' or less than two years' experience was required to perform the job.

Once the sponsored employee becomes an immigrant, the sponsoring employer must have a good-faith intent to employ him on a permanent basis. If the sponsoring employer lacks such intention, the application for the employee's lawful permanent residency status may be considered fraudulent. As a rule of thumb, the employee should work for the sponsoring employer for at least one year after immigration. This is not a hard and fast rule, and USCIS will look at legitimate business reasons for not continuing the employment (e.g., the company closes, goes bankrupt, experiences layoffs, or employee is involved in egregious behavior, etc.)

Furthermore, employers are reminded that they are required under the Immigration Reform and Control Act of 1986 to document on Form I-9 the work permission status of all employees (including U.S. citizens) hired after November 6, 1986.

During this entire process, the sponsored employee and his/her family, residing in the U.S., should maintain their valid nonimmigrant (temporary) status. However, the applicant (as well as his/her dependents) are eligible to apply for work authorization upon filing for adjustment of status in the U.S.

Spouses and unmarried minor children (under 21 years of age) must maintain their independent status as described in the preceding section. They will be able to immigrate as dependents if they apply along with the primary applicant. However, if the children are over 21 at the time the applicant immigrates, they will need to qualify for status in their own right.