Obtaining permanent residency through the PERM (labor certification application) process is a lengthy, multi-step procedure taking anywhere from two to three years. The thrust of the process is to determine whether there are any qualified U.S. workers (defined as U.S. citizens or permanent residents) for the position. If no qualified U.S. workers exist, then the foreign national is able to proceed towards permanent residency. Set forth below are the various steps required for this procedure.
FILING THE LABOR CERTIFICATION APPLICATION
This process requires significant personal recruitment efforts and processing times are estimated to be between 8 and 9 months for electronically filed applications. Employers can evidence their recruitment efforts, which must have taken place within the previous six month but not less than thirty days of filing, through the following means:
- 2 print ads are mandatory
- For jobs classified as professional by the Department of Labor, additional recruitment must be through three of the following:
- job fairs
- employer’s website
- job search web site other than employer’s
- private employment firms
- trade or professional organizations
- on-campus recruiting
- an employee referral program
- a notice of the job opening at a campus placement office
- radio and television advertisement
- local and ethnic newspaper
If the Department of Labor believes that sufficient recruitment has taken place, the Department of Labor will hopefully certify the application.
College/university teachers may process their labor certification applications through a process known as Special Handling. The requirement for Special Handling is that the college/university can document a competitive selection process within 18 months of the foreign national’s formal selection. The college/university must have placed an advertisement in a national publication as well as posted the job internally at the college/university. Unlike the labor certification application process, the college/university is able to hire the more qualified applicant.
As long as the recruitment has occurred within the previous 18 months, the Department of Labor should not require any further advertising and should certify the application.
FILING THE I-140 (PETITION FOR IMMIGRANT WORKER)
The next step toward permanent residency is filing the I-140 petition with the appropriate USCIS Service Center. At this point, the USCIS has two concerns. The first concern is that the employer has the ability to pay the stated wage. The second concern is that the foreign national satisfies all of the requirements set forth on the labor certification application and has documentary evidence thereof. Therefore, if prior experience in a specific set of skills has been required on the labor certification application, the foreign national must obtain letters from prior employers establishing that the foreign national obtained this experience.
FILING FOR PERMANENT RESIDENCY
Foreign nationals who are applying for permanent residency based upon employment must file their applications with the USCIS Service Center having jurisdiction over where the foreign national resides. Interviews, if required, will continue to be held at the local USCIS office.
At the time of filing, the foreign national will have to be able to establish maintenance of legal status. This means that the foreign national's passport must have been current for the duration of the period spent in the United States and that the foreign national maintained nonimmigrant status. Unauthorized employment, gaps in employment while an H-1B or failure to be a full-time student in good standing are all circumstances constituting a failure to maintain legal status.