Employer-Based Green Card or PERM–Process and Types
You’ve been residing in the US working for a US based employer. Now, you’ve decided that you want to settle down there. What’s that mean for you?
Well, it means that you need to apply for permanent residence provided you meet some criteria. In the US, the permanent residence is called the Green Card. Permanent residence means you would have similar rights to that of a citizen. There are some limitations such as you cannot vote with holding permanent residence. However, one key benefit that you would have is working and residing wherever you like without any authorisations. Take note that there may be some restrictions to change employers when the green card is issued. To solve that issue, best would be to consult an immigration or labour lawyer.
This article discusses the PERM and how to go about getting the green card. It’s a bit of a process, so sit down, buckle up, and enjoy the ride!
The US issues approximately 140,000 of these types of green cards annuals for those who want to immigrate because of employment. Each country is entitled to about 7% (9,800) of the applications irrespective of population. This total amount is for all categories. Broadly, five (5) categories exist:
|EB-1||Highly skilled person in the sciences, arts, business. The USCIS defines this category as someone who is extraordinary in their skills.||No
|EB-2||Professionals holding advanced degrees, e.g. MBA, PhD, or others with “exceptional” ability.||Yes|
|EB-4||Special Immigrants, e.g. religious workers||No|
Take note: The numbers are in order of preference, so the EB-1 has the highest preference and priority. Intuitively, that makes sense as the US desires to retain highly skilled contributors (any country/company wants high skills, right?). The labour certification becomes important later from the employer’s side.
The Green card process for employment consists of three steps: PERM/Labour Certification, I-140 petition, and I-485 application.
PERM – Labor Certification
An employer has the obligation to demonstrate that no US citizen holds the necessary qualifications and skills to fulfil the job before initiating the process. To achieve this goal, the employer must file a labour certification if the labour category requires it. From the above table, only EB-2 and EB-3 require it. All applications are submitted in the PERM (Program for Electronic Review Management) system since March 2005.
This labour certification consists of three parts:
- Prevailing Wage Determination (PWD): The job specs, required skills, and job location are sent to the US Department of Labor (DoL). The DoL evaluates and assigns a wage to this job. This employer uses this wage as the base salary for the job.
- Recruitment: The employer must advertise the job through various means. These means include 2 Sunday newspaper postings, state job agency, and three other advertisements. Other advertisements could include university job fairs, internal recruitment with an incentive, trade or professional organisation. In other words, a wide audience should view the view the advertisement.
- ETA Form 9089: that explains all relevant job information such as education requirements, job skills required, and training.
An important note to consider: one cannot use foreign language as criteria unless it is for the job necessity. The employer proves the job necessity through nature of the job or that majority of the communication is in that foreign language and cannot be conducted in English.
The date when the documents are filed with the DoL is the Priority Date. The visa type and priority date are linked. Both criteria determine the priority in which the USCIS reviews your application. The PERM review takes some time and may take several months. Don’t despair, it will have to go through its process in due time.
An exception to the above rule is the category and subcategory, EB-2 NIW (National Interest Waiver). The NIW means that the US benefits from you working in the country. In this case, no labour certification filing occurs. If the criteria are met, then the you would not require employer sponsorship. The applicant can file on their own behalf.
Filing I-140 petition
All green card processes include some petition. In the case of employment, the employer submits the I-140 petition. The employer only submits this petition if the DoL approves the labour certification. At this point, the priority date comes into play. If the priority date is current, then one can submit the I-485 form concurrently with the I-140 petition. More information on concurrent filing here.
Filing I-485 form
The I-485 form is the actual visa application to permit the applicant to stay in the US. It is an adjustment of status application. Adjustment of Status means that the person resides in the US and is changing their immigration status. To qualify for adjustment of status, certain criteria must be met.
The applicant submits the form at the Application Support Center (ASC). The ASC manages your application and corresponds with you. You may receive notice to attend an interview, medical check, or submit additional documentation. The timely response to these notices ensures continuation of your application. You should prepare for the interview. The interview is there to help the visa officer understand your true intentions and clear any doubts they may have.
Once USCIS decides, then you receive a notice via mail. If the decision approves the application, then you receive an approval notice first. After a short delay, you then receive the actual green card.
Note: There are other types of visas like HB1 or L1 visa. The process as described above would be quite similar. However, it is best to consult an immigration lawyer. The lawyer can provide you exact guidance on your EB application or your HB1/L1 visa application.
There may be other requirements not detailed in this article. The USCIS and visa officer can require additional documentation. You must take care to read and understand all the requirements before making an application. Your employer and local Human Resources department can consult you with some guidance. It’s a process. If followed correctly, then it is worth it in the end!