When applying for employment-based permanent residency in the United States through the Department of Labor’s labor certification program, the PERM (Program Electronic Review Management) process is an essential step.
It’s a lengthy and complicated procedure that necessitates the foreign national and their employer to fulfill a number of eligibility requirements. In this extensive piece, we will explore the specifics of the PERM process, including the standards, guidelines, and factors that determine who is qualified to participate.
What is the PERM Process?
Let’s get a quick overview of the PERM procedure before diving into the eligibility requirements. When applying for a green card in the United States based on a job offer, the PERM process is an essential step.
Many non-U.S. citizens who hope to gain legal permanent residency in the country through gainful employment start there.
The fundamental goal of the PERM process is to verify that no qualified, willing, and available American workers are being passed over in favor of the foreign national being considered for the position.
The PERM Process Involves Several Key Steps
- Job Posting and Recruitment: The company needs to put in a number of recruitment efforts to gauge the availability of workers. Typical methods include posting ads in newspapers and online job boards to attract qualified applicants.
- Prevailing Wage Determination: To determine the base salary that must be paid to the foreign worker, the employer must first acquire a prevailing pay decision from the DOL.
- PERM Labor Certification: The company applies for a labor certification from the DOL after conducting a thorough search for suitable U.S. workers and determining that none are available. This application provides extensive background about the position, the search for a suitable candidate, and the foreign national’s credentials.
- I-140 Petition: The next step is for the employer to file Form I-140, Immigrant Petition for Alien Workers, with U.S. Citizenship and Immigration Services (USCIS) once the labor certification has been authorized. This is Phase 2 of obtaining a green card through gainful work.
- Adjustment of Status (I-485) or Consular Processing: If the foreign person is already in the United States and the I-140 is accepted, he or she can file Form I-485 to adjust status to lawful permanent residence; otherwise, consular processing must be completed.
Now that we have a broad overview of the PERM process, let’s explore who is eligible to go through this process.
Eligibility for Employers
1. U.S. Employers:
U.S. companies that want to sponsor foreign workers for a green card through employment can use the PERM process. Examples of eligible employers are:
- U.S. Companies: Businesses based in the United States, whether they be private enterprises, corporations, partnerships, or anything else.
- Nonprofit Organizations: Sponsorship of foreign nationals is not limited to for-profit businesses.
- Educational and Research Institutions: Sponsorship of foreign national employees is permitted in specific situations by educational and research institutes.
2. Meeting DOL Requirements:
Employers must meet the following criteria set forth by the Department of Labor (DOL) in order to participate in the PERM process:
- Ability to Pay: Employers must provide financial records and other evidence of financial stability to show they can afford to pay the offered wage to the foreign national.
- Prevailing Wage Compliance: Employers must guarantee that the foreign worker will be paid at least the prevailing wage for the position in the area as determined by the Department of Labor.
- No Violation of Labor Laws: In order to be eligible, businesses must not have any open cases of violations of labor laws or regulations.
Eligibility for Foreign Nationals
1. Job Qualifications:
To be eligible for the PERM green card process, foreign nationals must meet the following requirements:
- Education and Experience: The PERM labor certification application stipulates that the foreign national must meet certain educational and work experience requirements.
- Skills and Training: They should be equipped with the knowledge, experience, and credentials to carry out the duties of the position.
2. Nationality and Visa Status:
- Employment-Based Visas: Most PERM applicants are foreign nationals working in the United States on a nonimmigrant visa that allows them to do so legally (H-1B or L-1). At the time they submit their I-140 petition, they must be in a lawful status.
- Country of Birth: Due to visa bulletin and priority date concerns, the availability of green card numbers may depend on the foreign national’s country of birth or flexibility. Processing times can be much longer in nations with backlogs.
- Priority Dates: The date the PERM application for labor certification was filed determines the priority date. In order to move forward with the I-140 petition, the foreign national must have a valid priority date.
3. Job Offer and Employer’s Compliance:
- Job Offer: An employment offer from a U.S. company that has gone through the PERM certification procedure and is willing to hire a foreign national is required.
- Compliance with Job Requirements: It’s imperative that the foreign national be both interested in and capable of carrying out the duties of the position detailed in the PERM labor certification petition.
- No Inadmissibility Grounds: No foreign national should be denied permanent residency on the basis of a ground of inadmissibility, such as a criminal record or a medical condition.
4. Family Relationships:
A foreign national’s familial ties may qualify them for the PERM process. Under certain family-based categories, a foreign individual may be eligible for sponsorship if, for instance, their spouse or parent is a U.S. citizen or permanent resident.
In order to help foreign nationals while they wait for their green card acceptance, the American Competitiveness in the Twenty-First Century Act (AC21) includes specific mobility options.
If their I-485 application has been waiting for a particular period of time, they can change jobs under certain circumstances without endangering their green card application.
2. Labor Market Test
To prevent qualified and available U.S. workers from being displaced by foreign nationals, the PERM procedure conducts a test of the U.S. labor market.
This evaluation of the applicant’s ability to find gainful employment is essential. Employers need to show they’ve exhausted their efforts to find suitable local candidates and that no competent Americans are available to fill the position.
3. Special Occupations
Sponsorship for permanent residency may be easier for persons in certain professions, such as teaching and healthcare. Waivers, J-1 visa waivers, and other special procedures may be required in these cases.
4. Retention of Priority Dates:
It is important for foreign nationals and employers to know that priority dates can be carried over from one employment-based green card category to another. This is something to keep in mind, especially if a foreign national’s job status changes while they are waiting for their green card.
When seeking permanent residency in the United States on the basis of employment, the PERM procedure plays a vital role. Both employers and foreign nationals must meet eligibility requirements before beginning the PERM process.
The labor market test, the DOL’s regulations, and proof of financial stability are all standards that must be met by employers. Qualifications, a genuine work offer, and legal visa status for the foreign national are all prerequisites for employment eligibility.
To ensure compliance with all regulations and to maximize the chances of success in acquiring a green card through the PERM procedure, it is advisable for both employers and foreign nationals to engage legal counsel or professional assistance.