Employment Based Labor Certification and Green Card - The PERM Process
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To improve the operations of the permanent labor certification program, ETA published a final regulation on December 27, 2004, which required the implementation of a new re-engineered permanent labor certification program by March 28, 2005. This new electronic program has improved services significantly.

The DOL processes Applications for Permanent Employment Certification, ETA Form 9089. The date the labor certification application is accepted for processing is known as the filing date and is referred to by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the appropriate USCIS service center with a From I-140, Immigrant Petition for Alien Worker. You may access the State Department Visa Bulletin(located under links) to learn which priority dates are currently being processed.

Qualifying Criteria

Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new PERM Regulations.  The job opportunity must be for a full time, permanent position. There must be a bona fide job opening available to U.S. workers. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process for Filing

Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089).  In the application, the employer must outline the recruitment undertaken as well as describe, in detail, the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work.  In addition, the  foreign worker’s relevant education and work experience, if any, must be provided.

Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the National Processing Center (NPC). Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.

The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation.  For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2) Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

Audits/requests for information: Supporting documentation need not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the SWA prevailing wage determination documentation is not submitted with the application, but must be retained for a period of five years from the date of filing the application by the employer.

Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.

Approvals. If the National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application.

 The USCIS Petition

After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS). The employer then attaches the certified ETA Form 9089 to a completed USCIS Form I-140, along with the appropriate fees, and submits the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other USCIS specified documentation.

Family Based Immigration
Permanent immigration in the U.S. comes with a variety of rights and privileges. One method to obtaining lawful permanent residency is through a relative who is either a citizen of the US or a lawful permanent resident.

K-1  Visa (Fiance Visa)
A Fiancee Visa (also known as a K1 Visa) is a travel document that allows a foreign Fiancee of a U.S. Citizen to enter the United States for the sole purpose of getting married. Fiancee Visas are generally considered the quickest vehicle to legally bring a foreign fiancée to the U.S. with the intentions of marriage and immigration.

There are two major steps to the Fiancee Visa process: The first step involves the filing of a Petition for the Alien Fiancee by the U.S. Citizen (also known as the "Petitioner").

This Petition is filed with the United States Citizenship and Immigration Services (USCIS) and must be sent to the appropriate USCIS Service Center, which is based upon the geographic residency of the U.S. Citizen.

Once the Petition has been approved by the USCIS, the second step involves the filing of the foreign fiancee visa application, including several forms and affidavits of support, the Foreign Fiancee's interview and the eventual issuance of the Fiancee Visa at his/her country's U.S. Embassy or Consulate.

Once the fiancée visa is issued, the Fiancee is free to enter the United States once. Once the Fiancee enters the U.S., the marriage between the Petitioner and the Fiancee must take place within 90 days of the Fiancee's entry. If the Fiancee does not marry the Petitioner within 90 days, or if the Fiancee marries someone other than the Petitioner, the Fiancee must leave the United States after 90 days.