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The Employment-Based Permit: Your Comprehensive Step-by-Step Guide – Reddy Neumann Brown PC
The employment-based permit process is a multi-step procedure that permits foreign nationals to live and work permanently in the U.S. The procedure can be complicated and prolonged, but for those looking for permanent residency in the U.S., it is an important action to achieving that objective. 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 normally the initial step in the employment-based green card process. The process is designed to ensure that there are no certified U.S. workers available for the position and that the foreign worker will not adversely impact the incomes and working conditions of U.S. employees.
Submit the Prevailing Wage Application
The employer starts the PERM procedure by drafting the task description for the sponsored position. Once the job details are finalized, a dominating wage application is sent to the Department of Labor (DOL). The prevailing wage rate is specified as the average wage paid to similarly employed employees in a particular profession in the location of desired work. The DOL concerns a Prevailing Wage Determination (PWD) based upon the specific position, task responsibilities, requirements for the position, the location of desired work, travel requirements (if any), to name a few things. The prevailing wage is the rate the company must at least provide the long-term position at. It is likewise the rate that must be paid to the staff member once the permit is received. Current processing times for dominating wage applications are 6 to 7 months.
Conduct the Recruitment Process
PERM guidelines require a sponsoring employer to check the U.S. labor market through numerous recruitment techniques for “able, prepared, qualified, and offered” U.S. workers. Generally, the employer has 2 alternatives when deciding when to start the recruitment procedure. The company can begin advertising (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:
– thirty days job order with the State Workforce Agency serving the area of intended employment;
– Two Sunday print ads in a paper of general flow in the location of intended employment, a lot of proper to the occupation and probably to bring reactions from able, willing, qualified, and offered U.S. employees; and
– Notice of Filing to be published at the job site for a duration of 10 successive company days.
In addition to the obligatory recruitment discussed above, the DOL needs 3 additional recruitment efforts to be published. The company must choose 3 of the following:
– Job Fairs
– Employer’s business website
– Job search website
– On-Campus recruiting
– Trade or professional organization
– Private employment firms
– Employee referral program
– Campus positioning workplace
– Local or ethnic paper; and
– Radio or TV ad
During the recruitment procedure, the employer may be examining resumes and conducting interviews of U.S. workers. The employer needs to keep detailed records of their recruitment efforts, including the number of U.S. workers who requested the position, the number who were interviewed, and the reasons that they were not hired.
Submit the PERM/ Application
After the PWD is issued 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 top priority date and determines his/her place in line in the permit visa line.
React To PERM/Labor Certification Audit (if any)
An employer is not required to send supporting documentation 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 guidelines. In the event of an audit, employment the DOL typically requires:
– Evidence of all recruitment efforts undertaken (copies of ads put and Notice of Filing);.
– Copies of applicants’ resumes and finished work applications; and.
– A recruitment report signed by the company explaining the recruitment actions carried out and the results achieved, the number of hires, and, if appropriate, the variety of U.S. candidates declined, summed up by the specific legal occupational factors for such rejections.
If an audit is issued on a case, 3 to 4 months are contributed to the total processing time of the PERM application.
Receive the Approved PERM/Labor Certification
If the PERM application is approved, the company will receive it from the DOL. The approved PERM/Labor Certification confirms that there are no competent U.S. employees offered for the position which the beneficiary will not negatively affect the wages and working conditions of U.S. workers.
Step 2: I-140 Immigrant Petition
Once the PERM application has been approved, the next step is to submit an I-140 immigrant petition with U.S. Citizenship and Immigration Services (USCIS). The petition needs to consist of the approved PERM application and proof of the beneficiary’s certifications for the sponsored position. Please note, depending on the preference classification and nation of birth, a recipient may be eligible to submit the I-140 immigrant petition and the I-485 modification of status application concurrently if his/her top priority date is current.
At the I-140 petition stage, the company should likewise demonstrate its capability to pay the beneficiary the proffered wage from the time the PERM application is filed to the time the permit is issued. There are 3 methods to show capability to pay:
1. Evidence that the wage paid to the recipient is equal to or higher than the proffered wage (pay-stubs, W-2s);.
2. Evidence that the company’s earnings is equivalent to or higher than the proffered wage (yearly report, tax return, or audited financial statement); OR.
3. Evidence that the business’s net assets are equal to or higher than the proffered wage (annual report, income tax return, or audited monetary declaration).
In addition, it is at this stage that the employer will select the employment-based choice category for employment the sponsored position. The classification depends upon the minimum requirements for the position that was listed on the PERM application and the staff member’s credentials.
There are several categories of employment-based permits, employment and each has its own set of requirements. (Please keep in mind, some classifications may not need an approved PERM application or I-140 petition.) The categories include:
– EB-1: Priority Workers.
– EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability.
– EB-3: employment 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 review it and might ask for additional details or documents by issuing a Demand for Evidence (RFE).
Step 3: Permit Application
Once the I-140 immigrant petition is approved, the recipient will inspect the Visa Bulletin to determine if there is a readily available green card. The real permit application can just be submitted if the beneficiary’s top priority date is current, implying a permit is right away readily available to the beneficiary.
Each month, the Department of State releases the Visa Bulletin, which summarizes the availability of immigrant visa (permit) numbers and shows when a green card has actually become readily available to a candidate based upon their preference category, country of birth, and priority date. The date the PERM application is submitted develops the recipient’s priority date. In the employment-based migration system, Congress set a limit on the variety of permits that can be provided each year. That limit is presently 140,000. This means that in any given year, the optimum number of green cards that can be issued to employment-based candidates and their dependents is 140,000.
Once the beneficiary’s concern date is current, he/she will either go through change of status or consular processing to receive the green card.
Adjustment of Status
Adjustment of status involves requesting the permit while in the U.S. After a modification of status application is submitted (Form I-485), the beneficiary is notified to appear at an Application Support Center for employment biometrics collection, which generally involves having his/her photo and signature taken and being fingerprinted. This information will be used to perform necessary security checks and for eventual production of a green card, employment permission (work license) or advance parole file. The beneficiary might be alerted of the date, time, and location for an interview at a USCIS workplace to address questions under oath or affirmation regarding his/her application. Not all applications need an interview. USCIS authorities will review the recipient’s case to figure out if it satisfies one of the exceptions. If the interview succeeds and USCIS approves the application, the recipient will get the green card.
Consular Processing
Consular processing includes making an application for the permit at a U.S. consulate in the beneficiary’s home nation. The consular workplace establishes an appointment for the beneficiary’s interview when his/her concern date ends up being present. If the consular officer grants the immigrant visa, the beneficiary is provided a Visa Packet. The recipient will pay a USCIS Immigrant Fee which is utilized by USCIS to process the Visa Packet and produce the green card. The recipient 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 determine whether to admit the recipient into the U.S. If admitted, the recipient will receive the green card in the mail. The permit acts as evidence of permanent residency in the U.S.