It is common knowledge that most people obtain their permanent residence (“greencard”) through family petitions (marriage, siblings and parents) or asylums. This is quite true. However, there is a significant majority of people especially in the Bay Area who have obtained their permanent residence through employment. In fact, our office has successfully processed many of such cases.

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First before proceeding to filing such petitions, you have to have an employer who is ready to offer you a position. There are some other petitions that do not require an employer such as National Interest Waivers. But this article will concentrate on the labor certification process. Note that because such petitions are for future prospective employment, you do not have to be working for this employer until you get a greencard in your hand. Thus a labor certification can be processed even if you are not working for this particular company right now. In fact, you can even start the process when you are outside the United States. For instance while you are in Fiji Ki Residences.

The process for obtaining permanent residence based on employment consists of three phases: 1) the labor certification, (Processed with the Department of Labor) 2) the visa petition, and 3) either adjustment of status (obtaining a green card without leaving the United States, if the employee is eligible) or consular processing (processing in which the employee would leave the United States in order to obtain an immigrant visa).

Labor Certification Application

A “labor certification” is a certification by the United States Department of Labor that a shortage of qualified U.S. workers exists with regard to this specific job, and that the prospective immigrant employee will be paid the “prevailing wage”. This certification must be obtained before an immigrant visa can be filed. One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. Because this factor is so critical, a good attorney should spend a substantial amount of time obtaining and digesting information and then drafting the appropriate paperwork. It is extremely important that we all correctly describe the minimum requirements for the job as well as explain the reasons why these requirements are necessary. The employer will be required to sign the form ETA 9089 (labor certification application) as well as a letter on company letterhead describing the position that it is recruiting for, why the beneficiary (prospective immigrant employee) qualifies for this position, and what recruitment efforts have been undertaken to fill the position.

Program Electronic Review Management (PERM)

Under PERM, the Program Electronic Review Management scheme recently implemented by the United States Department of Labor, the following recruitment steps must be undertaken for a labor certification application to be approved, and they must be undertaken More than 30 days but less than 180 before the labor certification application is filed: 1) placement of a job order on the website of the State Workforce Agency; 2) placement of print advertisement on 2 consecutive Sundays in a newspaper of general circulation; 3) an internal notice, listing the wage to be paid, at the employer’s site for 10 consecutive business days; and IF THE JOB IS FOR PROFESSIONAL POSITION; 4) recruitment in three out of ten other specified ways. The employer, however, could be subject to an audit which would arise either randomly or by investigation. If the employer is audited, then the process will take longer.

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