David Wright Immigration Law

Labor Certification (RIR or PERM)

Permanent residence through labor certification

There are several ways of applying for US permanent residence ("green card" status). The most common employment-based method is through labor certification. Labor certification means the US Department of Labor (DOL) has certified that willing and qualified US workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers. The term “US workers” refers to citizens, permanent residents, asylees and others with the permanent right to work in the US. The process has gone through several incarnations (all of which continue to co-exist), as of March 28, 2005, all labor certification applications must be filed in accordance with the DOL’s “PERM” regulation.

PERM

In one sense, PERM is not a change; as has always been the case with labor certification, approval of depends on the employer's ability to demonstrate that during the recruitment period no qualified US worker was available and willing to take the position. Under PERM, the DOL is responsible for the review and adjudication of labor certification applications, with a tiny bit of state government participation. Preparation of the labor certification application package under PERM remains complex and takes more preparation than the typical nonimmigrant (H or L) petition. Planning for the PERM has important consequences for everything that happens afterward, so it is important to work cooperatively to make sure it is done right. I am happy to report that PERM seems to be greatly reducing the backlog in the DOL. There are still thousands of cases waiting from the previous backlogs, but for new cases, the time for the labor certification portion of the green card process has been drastically reduced in most cases. The date of PERM submission serves as the “priority date” for the entire permanent residency process (i.e., one's place in the green card queue).

STAGE 1: Labor Certification (Department of Labor)

This process is done collaboratively, starting from your definition, taking into consideration your candidate’s qualifications, your foreseeable future candidates’ qualifications, and the factors considered by the State Workforce Agency (SWA – in California, the EDD) and the DOL.

Start

• The hiring manager or human resource office, sometimes with assistance from the employee, forwards to our office information necessary to begin the case.

Work-up

• I review and organize the Employee's information and documents. • Attorney analyze the case and develop a strategy or strategies. • I send a first draft of the job notice to employee and manager for input and refinement. • We consult and exchange drafts with the employee and manager until the manager approves a final job notice. PERM applications must be filed at least 30 days but not more than 180 days after the requisite recruitment has been conducted. Accurate record-keeping is essential in the event of an audit, and by law must be retained as long as you employ the candidate and 2 years after filing the PERM case. Please keep evidence of all recruitment efforts as outlined below. Please contact all minimally qualified candidates within 2 weeks, and document the dates and details of your initial and follow-up contacts. Please keep all notes from interviews, all related correspondence, including hiring managers’ comments, phone logs, email, etc. Letters declining to hire candidates should be sent by a traceable method, with copies retained. Please provide us with this summary once you have completed all recruitment. I will give you a worksheet to prepare this.

Preparation

Once the employer approves the job notice, • I obtain job/wage classification from SWA (State Workforce Agency) (2-3 weeks). • I obtain evaluation of academic degree, if necessary. • Employer initiate internal posting and give me confirmation (3 weeks). • Employer conducts recruitment (30 days must expire after the required requirement before the application can be filed). • Employer provides recruitment results to my office. • I assemble a package of recruitment documentation to be maintained according to the PERM rules. • I help the employee draft and obtain reference letters. • I prepare the final form for employee and company. • I prepare Employer’s recruitment report.• • Final check of all documents and letters. • Labor certification application form is filed online with DOL.

Department of Labor

DOL calls its software system “the matrix” (insert your joke here). The matrix is programmed to review the labor certification application for completeness and sufficiency. Many cases are rejected initially due to typos or other easily corrected mistakes. Because such rejections are quick, they do not normally cause problems. DOL may audit the application either on a random basis, or based on characteristics of the employer or the position and request that documentation supporting the application be submitted. When review is complete, DOL will either issue its approval or other decision. Approved applications will be returned to the attorneys, and both the employer and the employee will be required to sign the approved application before it can be used in the second stage of the process.

• DOL reviews and adjudicates the labor certification • If approved, DOL returns the application to be signed by the employer and the employee • If audited or denied, I prepare a response to DOL’s questions or complaints. Often re-filing immediately is possible.

STAGE 2: Company I-140 Petition for Immigrant Worker (CIS)

DOL’s certification that no qualified US workers are available or willing is an irreplaceable piece of evidence enabling the company to move to the second stage of the process: preparing and filing a petition. CIS is in the process of implementing a regulation that will require us to file the petition within 45 days of the approval. Since there can be extensive work preparing this petition, we need to begin the process even before we file the PERM application. Our office prepares the petition form I-140 and supporting documentation and files with the US Citizenship and Immigration Service (CIS). CIS determines the "preference group" of the case and adjudicates the petition; the processing times vary depending on the service center jurisdiction.

Preparation

Once the labor certification is approved, I will: • Draft forms and letter of support for the employer’s review and input. • Advise the employer as to what sorts of supporting evidence will be required to prove its ability to pay the wage offered. • Advise the employee on asking for reference letters documenting past experience and make sure the letters are acceptable for this purpose. • Incorporate the employer’s input, finalize the forms and letter and ask the employer to sign. • Perform a final check of all documents, forms, and letters. • File the petition package with CIS.

CIS

• CIS examines the requirements for the position, determines whether the employer has had adequate finances throughout the process; whether the employee meets all of the requirements set out in the labor certification application; which preference group (e.g., EB-2 or 3) should be applied to the position; and adjudicates the petition. Often they issue a Request For Evidence concerning one or more of these issues.

STAGE 3: Employee I-485 Application for Green Card (Adjustment of Status – AOS) (CIS)

Priority Date Issues

The company’s petition provides the basis for the employee's application for adjustment of status (AOS – form I-485) to permanent residence. The employee can file his or her green card application with the I-140 or after the I-140 is filed, provided that the priority date is “current.” Priority dates are the queuing system for cases under an immigrant quota. At present, many foreign nationals getting green cards must wait for their priority dates to become current before they are eligible to submit their applications for green card. The US Department of State (DOS) issues a monthly Visa Bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html. The categories are based on country of birth, not current nationality (with a few exceptions). A 'C' on the charts in the middle of the bulletin means that the category is "current" and there is no need for applicants born in that country and in that preference group to wait to file a green card application. If a date is indicated, people born in that country (with certain exceptions) , with that preference group must wait to file their green card applications until their priority dates become current. Thus the date of filing and the preference group make a big difference in how long it takes an individual to get a green card. For those who have to wait several years before they can apply for a green card, there is some consolation. Provided the PERM application was made before the end of an H-1B employee’s 5th year in H-1B status, H-1B petitions can be extended on a year-by-year basis. Then, once the PERM is certified and the company’s petition is approved, H-1B petitions can be extended for a full three-year period until the priority date is finally current. In cases where there is a backlog, such that the employee is not eligible to file the Green Card application together with the company’s petition, I track priority dates so the employee can file his or her application as soon as possible. Once the priority date is current, we file applications for adjustment to permanent residence, which eventually result in green card for the employee and immediate family. Along with those applications, we typically also file requests for travel permission (“advance parole”) and employment authorization for the employee and dependents. Once the advance parole application is approved, the employee and dependents will be able to travel outside the United States while waiting for CIS to approve their green cards. Once the employment authorization documents (EAD) are approved, the employee's dependents will be authorized to work in the United States. With the approval of the green card application, the employee and dependents become US permanent residents and green cards are issued to them through the mail.

Preparation

Once an employee has a current priority date, I: • Advise the employee to gather required documents and medical exam. • Prepare final forms for employee and company. • Get final forms signed by employee. • Assemble package with all documentation. • Final check of all documents, forms, and letters. • File the applications for Green Card, travel and employment authorization documents.

Permission to travel during pendency of case (Advance Parole)

• Employee and dependents must not travel outside the US until CIS has approved the travel document and it has been received.

Work Permit – (Employment Authorization Document – EAD)

• EADs approved and received for employee and dependents. • Employee's dependents are now authorized to work in the United States

I-485 approved

• Employee and dependents are now permanent residents.

I hope this gives some perspective on this process. It is a long process, subject to changes and capriciousness on the part of the various bureaucracies involved. In order to understand how it applies to your particular situation, it is important to discuss it directly.