A U.S. employer that wants to fill a job vacancy with a foreign worker can use the immigration laws and procedures to qualify the foreign worker for an employment based green card. In most instances, the foreign worker is already working for the U.S. employer with a temporary nonimmigrant work visa such as the H1b, L, E, or O visa but the employer now wishes to place the foreign worker in the position on a permanent or indefinite basis rather than for only a temporary period.
The immigration laws provide for several employment-based immigrant visa classifications. Most of the classifications have built-in protections for the U.S. labor market. Although there are exceptions, generally, the process for obtaining employment based green card is composed of three phases: the labor certification, the visa petition, and the application to become a permanent resident.
Step 1 of the Employment Based Green Card Process: Labor Certification
The first step involved in the employment based green card process of sponsoring an employee for legal permanent residence is to obtain a labor certification from the U.S. Department of Labor (DOL). Initially, a “labor certification” is a certification by DOL that a shortage of qualified U.S. workers exists to fill the position held by the sponsored intending immigrant employee, and that the company is paying or will pay the employee the “prevailing wage.” This involves identifying and evaluating the job requirements and job duties. Since DOL will ultimately be making a decision as to whether there is a shortage of U.S. workers, it must be decided whether there is a credible case to pursue. Assuming that a decision is made to move forward, a prevailing wage request is made to DOL based on the duties and requirements. Once the prevailing wage has been obtained, the next step is to recruit.
Under the PERM regulations, there are two categories of recruitment: (1) Professional; and (2) Non-professional. Assuming that the position is “professional,” the employer will be required to place two Sunday newspaper ads, place a job order with the state workforce agency, and make three other recruitment efforts out of a list of 10: (1) job fair; (2) employer’s website; (3) job search website other than the employer’s; (4) on-campus recruiting; (5) trade or professional organization; (6) private employment firm; (7) employee referral program with incentives; (8) campus placement office; (9) local and ethnic newspaper; and (10) radio and television advertisement. If the occupation is non-professional, the recruitment effort only needs to be two newspaper advertisements and a job order with the state workforce agency.
Our experience has been that, under normal circumstances, the labor certification is granted after review by DOL, although there may be an interim step called an “audit” where DOL might request more documentation or information or might require additional supervised recruitment. DOL might deny the application, as well. This concludes Step 1 of the Employment Based Green Card Process.
Step 2 of the Employment Based Green Card Process: I-140 Visa Petition
Upon receiving an approved labor certification in Step 1 of the Employment Based Green Card process, an I-140 visa petition must be prepared in Step 2 of the Employment Based Green Card process, which will be signed by the employer and submitted to U.S. Citizenship and Immigration Services along with the approved labor certification. At this time, the employer must submit documentation establishing the company’s ability to pay the employee’s proffered wages. In addition, documentation must be submitted verifying that the intending immigrant employee meets all of the minimum requirements listed in the labor certification. This concludes Step 2 of the Employment Based Green Card Process.
Step 3 of the Employment Based Green Card Process: Application to Become a Lawful Permanent Resident
The last step of the employment based green card process consists of the employer providing a letter from the company verifying the foreign worker’s employment, and, on occasion, a notarized job offer form. Although the employer’s involvement at this stage is minimal, we will be spending much time assisting the employee in gathering required documentation—such as birth certificates and marriage certificates, etc.—to complete this rather involved stage of the process. At the end of this step, the employee will be granted permanent residence, and, shortly thereafter, be issued a “green card” as evidence of permanent residence. This concludes Step 3 of the Employment Based Green Card Process.
Please be advised that the foregoing gives only a brief overview of the rather detailed and complicated employment based green card process.