For employers wanting to hire a foreign national to fill a permanent position which requires the employee to obtain a “green card” (U.S. lawful permanent resident status), “PERM” (permanent labor certification) is often the best and normally the only solution, although most employers are unaware of it.
Achieving lawful permanent resident status through the PERM process consists of three steps. The first step is the PERM application, which is filed with the U.S. Department of Labor (DOL). The second step is the filing of an immigrant visa petition with the USCIS (Immigration Service). The third, and final step, is the filing of either an application for lawful permanent resident status with the USCIS or an immigrant visa application at the U.S. Consulate in the foreign national’s home country.
Simply described, PERM is a process whereby a U.S. employer advertises for U.S. workers to fill a particular position and if no ready, willing and qualified U.S. worker applies for it, the U.S. Department of Labor (DOL) will approve the employer’s application for permanent labor certification.
There are a myriad of regulations governing PERM applications including when and where the employer must advertise, what job requirements the employer may and may not require, what experience the foreign national may or may not use in proving his/her qualifications for the position and the minimum wage the employer must pay.
Although it would seem that PERM cases would be suitable only for occupations for which there is clearly a shortage of qualified U.S. workers, such as foreign specialty chefs, PERM cases are routinely filed and approved for a vast array of positions which U.S. employers would like filled by a particular foreign national simply because of an unusual credential required for the position which the foreign national possesses.
In terms of timing, the processing time for a PERM-based “green card” depends upon whether the case is filed in the second or third employment-based preference (eligibility category). Second preference is for occupations which require, at a minimum, a Masters degree or a Bachelors with at least 5 years of post-baccalaureate progressively responsible experience in the specialty. Third preference is for positions, which require a lesser amount of education and/or experience.
As a general rule, the processing time for second preference cases is shorter than for third preference cases, although this depends in part upon the foreign national employee’s country of birth. The law sets an annual worldwide level of 140,000 for employment-based preference immigrants, with each country receiving the same number of immigrant visas. Due to the extremely high demand for employment-based immigrant visas from certain countries, particularly India, China and the Philippines, the backlogs in employment-based preference categories for nationals of these countries are often quite substantial.
Due to the complexity of PERM cases, employers are well-advised to retain the services of an experienced immigration attorney with a substantial amount of PERM experience to handle such a case.
Deborah Townsend, Esq.