HOW DO I SPONSOR AN EMPLOYEE FOR A GREEN CARD, OR LAWFUL PERMANENT RESIDENCE?

The process to sponsor a prospective employee for a green card varies based on which employment-based (EB) preference category they fall under. There are five EB categories for green card sponsorship, which are ranked based on qualifications. This discussion focuses on EB-2 and EB-3 preference categories.

Employment-Based

Preference Category

Who is Eligible?

EB-1 Those with “extraordinary ability” in the arts, sciences, business, education, or athletics; outstanding professors or researchers; multinational executives and managers
EB-2 Professionals with advanced degrees; those with exceptional ability in the arts, business, or sciences
EB-3 Professionals, skilled workers, and unskilled/other workers
EB-4 “Special immigrants,” including certain: religious workers, employees of US foreign service posts, Iraqi/Afghan interpreters/translators, and more
EB-5 Investors of $1 million or $500,000 (if invested in a target area), in a new commercial enterprise that employs 10 or more full-time US workers

Overview: Green Card Sponsorship

Employment-based immigration for EB-2 and EB-3 preference categories is a three-part process:

  1. For most employers, a PERM Labor Certification application must be filed with the Department of Labor (DOL).  There are various steps in obtaining the Labor Certification which require a recruitment period.
  2. Once the Labor Certification is approved, the employer may file an immigrant petition to sponsor the foreign national employee.  This application is filed with the United States Citizenship and Immigration Services, or USCIS.
  3. Finally, once the immigrant petition is approved, the employer or employee may file an application to adjust status to permanent resident on the Form I-1485 if it is the proper time to file.

Employment-based immigration for EB-2 and EB-3 preference categories is a three-part process:

  1. For most employers, a PERM Labor Certification application must be filed with the Department of Labor (DOL).  There are various steps in obtaining the Labor Certification which require a recruitment period.
  2. Once the Labor Certification is approved, the employer may file an immigrant petition to sponsor the foreign national employee.  This application is filed with the United States Citizenship and Immigration Services, or USCIS.
  3. Finally, once the immigrant petition is approved, the employer or employee may file an application to adjust status to permanent resident on the Form I-1485 if it is the proper time to file.

Step One: PERM Labor Certification Application

Once the foreign national candidate has accepted a job offer from the employer, the first step towards sponsoring them on a green card is to complete the PERM labor certification process and application to the US Department of Labor (DOL).  

Labor certification is multi-step process, required only for workers in the EB-2 and EB-3 employment-based preference categories. Employers must conduct a thorough, fair recruiting search for local candidates to demonstrate to the DOL that hiring a foreign national will not displace a minimally-qualified US worker. Overall, the employer must prove in their PERM application that they:

  • Are paying a fair, prevailing wage for the position
  • Have completed a thorough recruiting search for local candidates
  • Cannot find any US workers who are “qualified, available, able, and willing” to take the position as offered

Compliant Job Requirements

At the very beginning of the labor certification process, the employer must first accurately document the requirements for the job. It is essential that the position is outlined compliantly to help ensure that the PERM application is not rejected. The US job description will need to include:

  • Job title
  • Detailed duties
  • Minimum requirements – education, years and type of experience, and special skills

When determining the minimum requirements for the US position, employers should note that these:

  • Should only include education, experience, and special skills
  • Cannot exceed the qualifications of other employees in the same position within the company

The minimum job requirements must be those normally required to perform the job, and not exceed the DOL’s Specific Vocational Preparation level (as determined in the O*NET system).The foreign national must have obtained the required minimum qualifications prior to beginning work with the company.

Prevailing Wage Request

After outlining the minimum job requirements for the position, the employer must file a prevailing wage request with the DOL using form ETA 9141. The prevailing wage request will determine the minimum amount the employee must be compensated. Prevailing wages are determined by DOL using factors like:

  • Qualifications
  • Job location
  • Economic environment

The employer must be able to later demonstrate that they were able to pay the prevailing wage from the date that the PERM application was filed. The results from a prevailing wage request take an estimated 6-8 weeks after filing. This estimate is subject to change depending on DOL workload.

Recruiting Search: Overview

The recruitment phase of the labor certification process is a test of the labor market to see whether there are any minimally qualified US candidates for the role for which the foreign national may be taking. As a part of the recruitment process, the employer must advertise the position:

  • Internally, within their company
  • Externally, in the labor market

There are stringent requirements for these advertisements, per DOL. The employer must review all applications received and contact all qualified applicants for an interview.

Recruitment Timing Requirements

For the recruitment process itself, the employer must budget a minimum of two months. There is a required 30-day “active” period when advertisements are posted, usually marked by the time that the relevant job order is listed with the State Workforce Agency.

In addition, there is a required 30-day “quiet” period during which the employer must wait and respond to any additional applications resulting from their advertisements.

The employer must be able to demonstrate that they completed all recruiting steps no more than six months before submitting the application. Proper timing and documentation are essential for avoiding costly audits, which is why it is so important to have a qualified, competent immigration attorney.

Advertising Internally: Notice of Filing (NOF)

As one part of the recruitment process, the employer must create a Notice of Filing (NOF) to notify current employees that the labor certification may be filed for the foreign national. It also demonstrates to the DOL that the employer has adequately alerted current employees to the vacancy.

The NOF must be easy to read and posted in two places where employees will see it, for a period of 10 consecutive business days. The NOF must also be included in all in-house media during this period, where job vacancies are normally posted.

Because the NOF is related to fair labor practices, the DOL considers two locations acceptable for posting:

  • Near DOL Fair Labor Standards Act poster
  • Near DOL safety and health (OSHA) posters

The NOF must be posted between 30 and 180 days before filing the labor certification application.  Employers must include the following information in the NOF:

  • Employer’s name
  • Job location
  • Job description, as outlined above
  • Compensation, compliant with the prevailing wage
  • An address to apply for the position
  • Employer contact information

External Advertising Requirements for Labor Certification

The internal search is just one component of the recruitment process. To demonstrate that there are no qualified and available US workers, the employer must also advertise the position to external candidates. The job advertisement must include a description of the position vacancy including job related duties and minimum acceptable qualifications. The description must be sufficient to apprise local workers of the opportunity.

There are two mandatory forms of advertisements in the recruitment process. These ads must be completed between 30-180 days before submitting the PERM application:

  • Job order with State Workforce Agency, for a 30-day period
  • Two consecutive print ads in Sunday editions of a local newspaper with wide circulation in the area most likely to drive responses from willing, able, and qualified applicants
    • If the job requires an advanced degree, the employer may substitute an ad in a professional journal for one of the Sunday newspaper ads.

The employer must retain proof of advertisements, either in the form of:

  • The page where the advertisement occurred
  • Proof of publication from the newspaper, like a receipt for example

Additionally, for professional positions (requiring a minimum of a bachelor’s degree) the employer must also choose three other methods of recruitment for the position:

  • Job posting on employer’s website
  • Internet ads
  • Employee referral programs, only if they include incentives
  • External job search website ads (like ZipRecruiter, monster.com, etc.)
  • Recruiting firms
  • Campus career offices
  • On-campus recruiting
  • Radio and television ads
  • Job fairs
  • Trade or professional organization
  • Local and ethnic newspapers

During the advertisement period, the employer must review all applications they receive. They also must interview all candidates who meet the minimum requirements for the position, as advertised. If there are no minimally qualified, willing, able, and available US workers, then the employer should document this and move forward with the green card sponsorship process.

After completing all steps above and documenting them accurately, the employer may submit the PERM application using ETA Form 9089. The PERM labor certification must be approved to file the I-140 petition, which is the next step in the green card application process.

Important PERM deadlines:

PERM Application Estimated Timeline:

  • 180-day recruitment validity period
  • Varying requirements for recruitment duration based on advertising method
  • Prevailing Wage – can change in each annual Occupational Employment Statistics (OES) Salary Survey publication (released in June)
  • 10-day Notice of Filing posting; completed 30-180 days before filing PERM
  • 30-day “quiet period” after posting external advertisements
  • 180-day validity period of PERM approvals – during which the I-140 must be filed

The foreign national can also be impacted by non-PERM timing issues such as non-immigrant statues time limits

  • Prevailing Wage Request: 6-8 weeks after filing
  • Recruitment process: minimum of 2 months
  • Filing labor certification (PERM) and waiting for approval: 6-8 months after filing
  • Total time, including recruitment: approximately 10-14 months

Please Note: Processing times may be longer if the PERM application is selected for audit.

Step Two: The USCIS Petition

Following approval of the PERM Labor Certification, the employer must file an I-140 Immigrant Petition for the foreign national worker with the USCIS. The I-140, and is filed by the employer on behalf of the employee and must include the certified PERM for EB-2 and EB-3 categories.

Beneficiaries in the EB-4 category file using Form I-360, and EB-5 applicants use the I-526 form.

The processing time for the I-140 between 6-9 months. For certain I-140 applications, 15-day premium processing is available.

Step Three: The Foreign National’s Application for Permanent Residency

After USCIS has approved the employer’s I-140 petition, the foreign national will undertake the third and last stage of the residency process which is to file his or her own application for permanent residency using Form I-485. The employee’s spouse and any unmarried children under the age of 21 are also permitted to apply for residency.

The filing in this stage is dependent on the availability of the EB preference category for which the employee is qualified. The priority date is when the foreign national initially filed his/her case to immigrate to the United States by applying for an immigrant visa.

The EB category is subject to restrictions on the annual immigrant visa quota, based on nationality. The State Department publishes a monthly waiting list based on the priority date to regulate who is eligible to apply for adjustment of status to permanent resident (Form I-485) or Consular Processing.

On the list, the State Department provides a date for each category of preferences for both family-based immigrant applications and employment-based immigrant applications. This date is known as cut-off date. The State Department determines the cut-off dates by viewing the priority date of first applicant who could not file for adjustment of status due to the previous month’s dates and quota. You may check the current visa availability dates.

At this time the AOS filing/final adjudication may take between 5-6 years depending on the category the foreign national is filed under. The processing time may vary.While waiting for the final I-485 application to adjust status to be approved, the 21st Century Act (AC21) can be helpful to the foreign national. AC21 allows certain foreign nationals to change jobs, and extend their H-1B beyond the 6-year limit, before receiving their green card.

Updated 11/30/2017

This article is intended as general information and does not constitute legal advice. Using this document or any other material provided by Chugh, LLP does not create an attorney-client relationship. All information should be independently verified before relied on or acted upon. Please speak to an experienced immigration attorney for case-specific questions.