There are three steps for obtaining permanent resident or “Green Card” status under the Program Electronic Review Management (“PERM”) system. This application process requires an employer to conduct recruitment for the foreign national’s position and show that there are not any qualified or available U.S. workers for the position.
These three steps are as follows:(1) PERM Work Certification Appeal. The PERM application requires the employer to conduct recruitment for 180 days before filing the online Labor Certification Application. Once the application is filed with the U.S. Department of Labor (“DOL”), the employer is required to maintain a file containing recruiting documentation and prove his/her inability to find qualified and available workers in the U.S. The date the PERM application is filed is considered the “priority date” of the foreign national’s application, which is basically that person’s place in the line for an immigrant visa number. The third step of this process may not be filed until the foreign national’s priority date is current, that is, an immigrant visa number is available. Once the electronic PERM application is filed with DOL, it can be approved or it audited. If a PERM application receives an audit, the processing of the application might be delayed by 12-18 months.
(2) Immigrant Visa Petition. The next step, once the Department of Labor approves the PERM application, is preparing and filing an immigrant visa petition (Form I-140) with the USCIS. In this petition, the employer must show that he/she has been unable to find qualified and available U.S. workers for the position, and that he/she has found a foreign worker, fully qualified for the U.S. position. The petition must show that the foreign national meets the minimum requirements for the position as indicated in the recruitment, and the employer has the ability to pay the offered wage, both presently and at the time the PERM application was filed.
(3) Adjustment of Status Application or Immigrant Visa Application. If the foreign national is staying in the U.S., the last step is filing an application, to adjust the foreign national’s immigration status from temporary worker into permanent resident. If the foreign national is outside the U.S. or cannot adjust status in U.S. territory, the last step in to file an immigrant visa application at the U.S. Embassy or Consulate in the foreign national’s home country or country of last foreign residence. This cannot be done before the immigrant visa number is available (the person’s priority date becomes current).
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader. This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
