7 Secrets You Must Know To Win A Green Card Through PERM Labor Certification

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Ann Massey Badmus

Angela M. Lopez

PERM Labor Certification ProcessSpeaker: Ann Massey Badmus

PERM = PROGRAM ELECTRONIC

REVIEW MANAGEMENT

U.S. Department of Labor

Step 1 of the Green Card process

PERM LABOR CERTIFICATION

WHO NEEDS LABOR CERTIFICATION?

All foreign national workers who are employer-sponsored for a Green Card must undergo labor certification except: EB-1 Multinational Executive/Manager,

Outstanding Researcher, Extraordinary Ability Worker

EB-2 National Interest Waiver Worker EB-4 Special Immigrant Worker

Employment -Based (EB) Categories for PERMEB-2

Advanced Degree

Professional

EB-3 Professional

Worker

EB-3 Skilled Worker

EB-3 Unskilled Worker

Choose the Right Immigrant Visa Category Master’s degree or bachelor’s

degree plus five years progressive experience is required for the position

Employee possesses required degree (or foreign equivalent) and any required experience

Experience equivalency ≠degree requirement

EB-2 Advanced Degree ProfessionalSEC

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Bachelor’s degree (Professional) or two years postsecondary

education or experience (Skilled Worker) required

by position

Employee possesses required degree (or foreign equivalent),

education, or experience

EB-3 Skilled Worker

EB-3 Professional

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1 Choose the Right Immigrant Visa Category

VISA BULLETIN – November 2012Employment-Based

All ChargeabilityAreas ExceptThose Listed

China-Mainland

Born India Mexico Philippines

1st Current Current Current Current Current

2nd Current 09/01/07 09/01/04 Current Current

3rd 11/22/06 04/15/06 10/22/02 11/22/06 08/08/06

Other Workers 11/22/06 07/01/03 10/22/02 11/22/06 08/08/06

4th Current Current Current Current Current

Certain Religious Workers

Current Current Current Current Current

Iraqi & Afghani Translators

Current Current Current Current Current

5th Current Current Current Current Current

Targeted Employment

Areas/Regional Centers

Current Current Current Current Current

Priority Date = Date of PERM filing

Job Qualifying CriteriaMust meet customary

requirements for the occupationMay not be tailored to foreign

workers qualifications

No unduly restrictive job requirements unless adequately

documented as business necessity, e.g. foreign language

requirement

Regular PERM ProcessingAll full-time workers other than university teachers

Conduct recruitment within 180 days of application to determine whether minimally qualified U.S. workers, i.e. U.S. citizens or permanent residents, are available

Must pay prevailing wage or higher once foreign worker obtains permanent residence

Regular PERM Processing (cont.)

Prevailing wage determination $

Job order with State Workforce Agency (SWA) for 30 days

Two Sunday newspaper ads

For professionals, 3 additional ads

Notice of Filing or Job Availability posted for 10 business days

Recruitment Report

Determine the Prevailing Wage Early

Submit ETA9141 as soon as possible and before advertising if wage is an issue

Locate alternate wage surveys, if OES wage too high

Check OES wage survey http://www.flcdatacenter.com

Establish job description, including educational and experience requirements

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Advertisement and RecruitmentAds must identify

employer accurately and

direct responses to employer

Ads must describe the job

opportunity sufficiently to

apprise applicants

Ads must contain the geographic location of the

job, e.g. Dallas, Texas

Wage is not required in ads,

but must equal or exceed prevailing wage if included

Record Recruitment Responses and Act Immediately

Review and evaluate

resumes upon receipt

Timely contact with applicants, e.g. 7 -14 days

of receipt of resumes

Document applicant

contacts or attempts to

contact

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Record Recruitment Responses and Act Immediately (cont.)Analyze

qualifications of applicants

against minimum

requirements (not most qualified)

Screen and interview

based upon normal

company process

Provide objective and quantifiable reasons for rejections

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Recruitment RecordkeepingEmployers must maintain documentation of recruitment efforts for five (5) years from filing of labor certification

Employers must prepare a detailed recruitment report that describes recruitment efforts

Recruitment report must include number of applicants and reason for rejection of each applicant

Optional Special Recruitment PERM Labor CertificationFor college/university teaching

position where classroom teaching is involved

Labor certification application must be filed within 18 months from date of job offer letter

Single advertisement in national print journal or 30 days electronic advertisement

Optional Special Recruitment PERM Labor Certification (cont.)Salary must meet or exceed prevailing wage

“Most qualified” standard of selection

Selection committee must document that foreign national is more qualified than US applicants

Prepare for a DOL AuditAudit File must contain:

◦Recruitment log◦Recruitment report◦Prevailing wage determination◦Notice of Filing, advertisements, job order◦Documentation of business necessity for

special requirements, e.g. foreign language

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Prepare for a DOL Audit (cont.)Audits can be random or triggered

by:◦Job duties not normal for occupation◦Qualifying experience gained with

sponsoring employer in comparable position

◦Foreign language requirements◦Layoffs for same or similar position ◦Sponsored employee owns part of

business or has family relationship with owner of business

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Sponsorship ObligationsMust pay all costs associated with PERM process, including attorneys’ fees and advertising (employee cannot reimburse)

Must conduct good faith recruitment effort without sponsored employee involvement

Must confirm that no qualified, U.S. workers responded to the recruitment

The Green Card Process After PERM ApprovalSpeaker: Angela M. Lopez

Step 2: I-140 PetitionEmployer must file I-140 petition

within 180 days of PERM approvalEmployer must prove ability to

pay the offered wage (prevailing wage or higher)

Sponsored employee’s qualifications must be documented, e.g. education, experience

Premium processing option ($1225)

Evaluate Ability to Pay Before Starting PERM ProcessProof of current ability to pay offered wage can include:◦A statement from the financial officer

of the company, if 100 or more employees

◦Copies of the following documents for the year of and year preceding the labor certification, if fewer than 100 employees:

Annual Report Federal Tax Returns Audited Financial Statements

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Obtain Proof of Qualifications BEFORE PERM is FiledEducation, training, and

certifications must be completed before PERM is filed◦Diplomas and/or transcripts◦Training certificates◦Certification letters or documents

Experience required for position must be attained before PERM is filed◦Detailed letters of experience from

previous employers

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Step 3: Immigrant Visa Process (Green Card”)Priority date must be

current, i.e. immigrant visa

number available

Two processing options

• Adjustment of Status petition (in the U.S.) - Form I-485

• Consular process (outside the U.S.) - Form DS-230

Adjustment of StatusPresent in the U. S. in valid non-

immigrant status and no status violations for more than 180 days

I-485 filed separately for employee and family member with USCIS

Employment Authorization Document (EAD)

Travel Authorization Document (Advanced Parole)

Processing time – 6 months or more, depending upon priority date

Consular Process• DS-230 form - file with the Department of State (consulate/embassy) for employee and each family member• Processing Times – approximately 3 to 6 months (depends on the consulate) after I-140 approval• Applicant and family must travel to U.S. consulate for interview at designated time

Fastest Processing Determine whether I-485 or DS-230 is best or only option before I-140 is filedFile I-140 and I-485 applications concurrently, if priority date is currentUse premium processing for I-140 petition, especially if consular processingTrack priority dates monthly at:http://www.travel.state.gov/visa/bulletin/bulletin_1360.html

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Question & Answer Session

Legal Notice Facts of each case are different. The information provided here is general in nature and should not be relied upon for your specific situation and is not legal advice.Consult with an experienced immigration attorney to get the right advice to secure your future in the United States.

11325 Pegasus Street, Suite S-215

Dallas, TX 75238469-916-7900 Telephone469-916-7901 Facsimile

immigration@badmuslaw.comwww.badmuslaw.com

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