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The Employment-Based Green Card: Your Comprehensive Step-by-Step Guide - Reddy Neumann Brown PC

The employment-based green card procedure is a multi-step process that allows foreign nationals to live and work permanently in the U.S. The procedure can be complicated and prolonged, but for those seeking permanent residency in the U.S., it is an important step to attaining that goal. In this article, we will go through the actions of the employment-based green card procedure in detail.

Step 1: PERM/Labor Certification

The PERM/Labor Certification process is typically the initial step in the employment-based green card process. The procedure is developed to make sure that there are no qualified U.S. employees readily available for the position which the foreign worker will not adversely impact the earnings and working conditions of U.S. employees.

Submit the Prevailing Wage Application

The employer begins the PERM procedure by drafting the job description for the position. Once the job details are settled, a dominating wage application is submitted to the Department of Labor (DOL). The dominating wage rate is specified as the average wage paid to likewise used workers in a specific profession in the location of designated employment. The DOL problems a Prevailing Wage Determination (PWD) based on the particular position, task duties, requirements for the position, the location of designated work, travel requirements (if any), amongst other things. The prevailing wage is the rate the employer should at least offer the permanent position at. It is likewise the rate that needs to be paid to the worker once the permit is received. Current processing times for prevailing wage applications are 6 to 7 months.

Conduct the Recruitment Process

PERM regulations need a sponsoring employer to evaluate the U.S. labor market through different recruitment approaches for "able, ready, qualified, and offered" U.S. employees. Generally, the employer has 2 choices when deciding when to begin the recruitment process. The company can begin marketing (1) while the prevailing wage application is pending or (2) after the PWD is provided.

All PERM applications, whether for a professional or non-professional occupation, need the following recruitment efforts:

- 1 month job order with the State Workforce Agency serving the area of designated work;
- Two Sunday print ads in a newspaper of general flow in the location of designated work, the majority of suitable to the occupation and probably to bring actions from able, prepared, certified, and readily available U.S. employees; and
- Notice of Filing to be posted at the task website for a duration of 10 successive organization days.

In addition to the mandatory recruitment discussed above, the DOL requires 3 additional recruitment efforts to be posted. The employer must select 3 of the following:

- Job Fairs
- Employer's business site
- Job search website
- On-Campus recruiting
- Trade or professional organization
- Private work companies
- Employee referral program
- Campus positioning workplace
- Local or ethnic paper; and
- Radio or TV advertisement

During the recruitment procedure, the company may be examining resumes and conducting interviews of U.S. workers. The company should keep detailed records of their recruitment efforts, consisting of the variety of U.S. employees who requested the position, the number who were talked to, and the reasons that they were not hired.

Submit the PERM/Labor Certification Application

After the PWD is provided and recruitment is total, the employer can send the PERM application if no certified U.S. workers were discovered. Currently the DOL is taking 8 to 9 months to process PERM applications after submission. The day the PERM application is submitted establishes the beneficiary's priority date and identifies his/her location in line in the green card visa queue.

Respond to PERM/Labor Certification Audit (if any)

An employer is not needed to submit supporting paperwork when a PERM application is filed. Therefore, the DOL executes a quality assurance procedure in the kind of audits to ensure compliance with all PERM policies. In case of an audit, the DOL usually requires:

- Evidence of all recruitment efforts carried out (copies of advertisements placed and Notice of Filing);.
- Copies of candidates' resumes and finished employment applications; and.
- A recruitment report signed by the employer describing the recruitment steps carried out and the results attained, the number of hires, and, employment if applicable, the number of U.S. candidates declined, summarized by the specific lawful occupational factors for such rejections.

If an audit is released on a case, 3 to 4 months are contributed to the overall processing time of the PERM application.

Receive the Approved PERM/Labor Certification

If the PERM application is authorized, the employer will get it from the DOL. The approved PERM/Labor Certification verifies that there are no certified U.S. workers offered for the position which the beneficiary will not adversely impact the earnings and working conditions of U.S. employees.

Step 2: I-140 Immigrant Petition

Once the PERM application has actually been authorized, the next step is to file an I-140 immigrant petition with U.S. Citizenship and Immigration Services (USCIS). The petition needs to consist of the approved PERM application and evidence of the recipient's certifications for the sponsored position. Please note, depending upon the choice classification and nation of birth, a recipient might be eligible to submit the I-140 immigrant petition and the I-485 adjustment of status application concurrently if his/her top priority date is existing.

At the I-140 petition stage, employment the company needs to also demonstrate its capability to pay the beneficiary the proffered wage from the time the PERM application is submitted to the time the green card is issued. There are 3 ways to show capability to pay:

1. Evidence that the wage paid to the beneficiary is equal to or greater than the proffered wage (pay-stubs, W-2s);.
2. Evidence that the company's earnings is equivalent to or greater than the proffered wage (yearly report, tax return, or audited monetary statement); OR.
3. Evidence that the business's net possessions amount to or greater than the proffered wage (annual report, employment tax return, or audited financial statement).

In addition, it is at this phase that the employer will choose the employment-based choice classification for the sponsored position. The category depends on the minimum requirements for the position that was noted on the PERM application and the employee's certifications.

There are a number of classifications of employment-based green cards, and each has its own set of requirements. (Please note, some categories might not require an approved PERM application or I-140 petition.) The categories consist of:

- EB-1: Priority Workers.
- EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability.
- EB-3: Skilled Workers, Professionals, and Unskilled Workers (Other Workers).
- EB-4: Certain Special Immigrants.
- EB-5: Immigrant Investors

After the I-140 petition is filed, USCIS will evaluate it and might ask for additional details or documentation by releasing a Demand for Evidence (RFE).

Step 3: Green Card Application

Once the I-140 immigrant petition is approved, the recipient will check the Visa Bulletin to figure out if there is an available green card. The real green card application can only be filed if the beneficiary's top priority date is current, meaning a permit is instantly readily available to the recipient.

Monthly, the Department of State publishes the Visa Bulletin, which sums up the schedule of immigrant visa (green card) numbers and indicates when a green card has become readily available to a candidate based upon their choice classification, nation of birth, and top priority date. The date the PERM application is filed establishes the recipient's concern date. In the employment-based immigration system, Congress set a limitation on the variety of permits that can be provided each year. That limit is presently 140,000. This suggests that in any given year, the optimum variety of permits that can be provided to employment-based candidates and their dependents is 140,000.

Once the beneficiary's top priority date is existing, he/she will either go through change of status or consular processing to receive the permit.

Adjustment of Status

Adjustment of status involves requesting the permit while in the U.S. After a modification of status application is filed (Form I-485), the recipient is alerted to appear at an Application Support Center for biometrics collection, which generally involves having his/her photo and signature taken and being fingerprinted. This details will be utilized to perform necessary security checks and for eventual development of a green card, work permission (work license) or advance parole document. The recipient might be notified of the date, time, and area for an interview at a USCIS workplace to address concerns under oath or affirmation relating to his/her application. Not all applications need an interview. USCIS officials will evaluate the recipient's case to figure out if it satisfies one of the exceptions. If the interview achieves success and USCIS authorizes the application, the beneficiary will get the permit.

Consular Processing

Consular processing involves obtaining the permit at a U.S. consulate in the recipient's home country. The consular office establishes a visit for the recipient's interview when his/her concern date becomes current. If the consular officer grants the immigrant visa, the beneficiary is given a Visa Packet. The recipient will pay a USCIS Immigrant Fee which is used by USCIS to process the Visa Packet and produce the green card. The beneficiary will present the Visa Packet to the U.S. Customs and Border Protection (CPB) officer at the port of entry. The CBP officer will check and figure out whether to confess the beneficiary into the U.S. If admitted, the recipient will get the permit in the mail. The permit serves as evidence of permanent residency in the U.S.