Legal Permanent Residency and the PERM Labor Certification Application

October 7th, 2017

The most prevalent avenue for a foreign national to obtain legal permanent residency in the US through employment involves the PERM labor certification process. There are two or three stages to obtaining legal permanent residency through this PERM labor certification process: (1) the PERM labor certification application (2) the immigrant visa petition; and (3) the application to adjust status or consular process abroad for the immigrant visa. The immigrant visa petition and application to adjust status may be filed concurrently in cases where a visa number is immediately available, thereby eliminating one step.

The foreign national is not allowed to make any payments for the PERM labor certification and the employer must exclusively incur all costs related to it. This includes the advertising fees as well as the attorney’s fees. Also, the employer engaged in the labor certification process will be prohibited from withholding from an alien’s wages, either in increments or in lump sum, any payment in reimbursement to the employer for costs associated with that process. The employer and/or the foreign national may pay for any and all costs associated with the second and third stages.

In the PERM labor certification stage, first the employer obtains a prevailing wage determination from the US Department of Labor (DOL) to ensure that it is offering the requisite prevailing wage. Then the employer advertises the position and responds to any U.S. applicants to the position. If no qualified, willing, able and available U.S. workers respond, then the employer files the PERM labor certification application (Form ETA 9089) with the DOL electronically (there are exceptions where paper filing is possible, but it is not recommended). The DOL may then certify the application or perform an audit to ensure that the employer has complied with the PERM recruitment obligations and/or to determine if there are no other deficiencies in the labor certification application, such as unduly restrictive requirements, or if any qualified applicants responded to the recruitment. During an audit, the DOL may also conduct supervised recruitment. The DOL initially predicted that it would take 45 to 60 days to process a labor certification application. However, the current processing times are approximately three months (and even longer for audited cases). It should also be noted that it takes around five months to prepare and file a PERM case.

If the DOL certifies the PERM labor certification application, then the employer proceeds to the second stage and files the immigrant visa petition. In support of the immigrant visa petition (Form I-140), the employer must submit evidence of its ability to pay the proffered wage as of the date of the filing of the labor certification application (priority date) and continuing up until the date of filing the I-140. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. An employer with more than 100 employees may submit a letter from the chief financial officer attesting to the company’s ability to pay the wage, although USCIS can request additional evidence.

Losses on a tax return does not necessarily hurt the company’s ability to show its ability to pay the wage. This is because USCIS will consider the payment of wages to the beneficiary as evidence of its ability-to-pay the wage. Therefore, even though the employer is not required to pay the beneficiary the wage offered on the PERM application until the final stage of the legal permanent residency process is approved, it is highly recommend that company pay the beneficiary the wage offered on the PERM application as of the date of filing the PERM application. If the company pays less than the wage offered on the PERM application, then it must show its ability to pay the difference through the evidence noted above (with the tax returns or annual report being the best evidence) or with secondary evidence (profit/loss statements, bank account records, or personnel records and other evidence of the company’s ability to pay the wage going forward). However, it should be emphasized that USCIS is not required to accept this secondary evidence.

In addition to the financial evidence, the employee must submit evidence that he or she met the minimum education and experience requirements at the time the labor certification application was filed (diplomas, transcripts, education equivalency evaluations, employment experience letters, etc.).

If an immigrant visa number is immediately available, then the employee may also file the application to adjust status to legal permanent residence (Form I-485), along with his or her spouse and children under 21. The worldwide level for annual employment-based preference immigrants is at least 140,000 and these numbers are divided equally among all countries. Since there is a far higher demand for visas for foreign nationals from India and China, this results in a tremendous backlog and wait for visa numbers for foreign nationals from these countries (which could be as much as approximately 10 years). The US Department of State issues a Visa Bulletin each month providing the dates that visa numbers become available (https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html).

Approximately three months after filing the application for legal permanent residence the employee may receive universal work authorization. Thus, if the foreign national’s current nonimmigrant status is expiring at this point, he or she could continue pursuant to the universal work authorization.

It usually takes approximately six months for the application for legal permanent residence and the immigrant visa petition to be adjudicated (although there have been isolated cases of approvals within several months). If it is approved, then the foreign employee must report to work for the sponsoring employer. There is no specified period of time during which the employee must remain with the sponsoring employer, although six months is a relatively safe period. Therefore, in summary, the employee can obtain legal permanent residence within fewer than two years should an immigration visa number be immediately available before filing the immigrant visa petition.

If there is a visa number backlog at the time the labor certification is approved, then the employer files the Form I-140 immigrant visa petition but the foreign national does not file for adjustment concurrently. Instead, he or she must wait for a visa number to become available. Also, once the labor certification or immigrant visa petition has been pending at least one year, even if it is not approved, the foreign national can obtain additional years in H-1B status (the primary nonimmigrant visa used by professionals to work in the US) beyond the initial six-year period until the application for permanent residence is finally approved.

Premium Processing Resumed for All H-1B Petitions

October 3rd, 2017

USCIS announced that as of October 3, 2017, it has resumed the premium processing for all H-1B petitions, including the conversion of pending petitions. On September 18th USCIS resumed premium processing of H-1B petitions subject to the cap and on July 24th it reinstated premium processing for H-1B petitions filed by cap-exempt petitions based on the Conrad 30 Waiver program and interested government agency waivers.

Premium processing expedites the adjudication of a petition and USCIS is required to provide a decision or request additional evidence within 15 calendar days. If it fails to meet this deadline then it must return the premium processing fee.

Premium processing is particularly important for the beneficiaries of pending H-1B extension petitions, since they are only granted 240 days of continued employment authorization after the expiration date of their most recent H-1B approval notice. They are allowed to remain in the US after this 240-day period if the H-1B extension petition was filed before their H-1B status expired, but their employment authorization terminates after this period.

It is not necessary for an H-1B petition to change employers to be approved before the beneficiary may work for the new petitioner. The beneficiary may work after USCIS receives the H-1B petition from the new employer pursuant to portability.

Diversity Visa Lottery Winners Sue over Travel Ban

October 3rd, 2017

The winners of the 2017 diversity visa lottery (DV) who are nationals of countries included in Executive Order 13780’s travel ban to the US filed a lawsuit challenging the Department of State’s (DOS) refusal to issue immigrant visas to them. (P.K. v. Tillerson, 8/3/17). The court denied the plaintiffs’ request to compel the DOL to process their visa application, but did issue an order requiring the DOS to hold any unused diversity visa numbers for FY2017 to process plaintiffs’ visa applications in the event the Supreme Court finds Executive Order 13780 to be unlawful. (P.K. v. Tillerson, 9/29/17)