Permanent Residence through Labor Certification ("PERM")
There are three essential steps to employment based permanent residency through “PERM,” also known as labor certification:
- Step One – “PERM” Labor Certification Application: The employer files an application for an alien employment certification ("labor certification") on behalf of the individual with the U.S. Department of Labor (DOL).
- Step Two - Immigrant Petition (I-140): When the labor certification application is certified, the company files an immigrant petition with the U.S. Citizenship and Immigration Service (USCIS).
- Step Three - Adjustment of Status (I-485): Once the immigrant petition is approved or there is an available visa (current priority date), the employee applies for adjustment of status to U.S. permanent resident (for him/herself and his/her spouse and/or children, if applicable).
PERM Labor Certification
A PERM Labor Certification is an official U.S. Department of Labor finding that:
- No U.S. workers can be found, at the time of filing the application and in the geographic area where the job exists, who are available, willing, and able to fill the position; and
- The individual's employment will not "adversely affect" the wages and working conditions of similarly situated U.S. workers.
Labor Certification is obtained by filing an application with the U.S. Department of Labor’s PERM system. PERM is an attestation and audit system under which employers seeking permanent labor certification conduct advertising and recruitment prior to filing the labor certification application.
The rule imposes a list of mandatory recruitment steps and posting requirements during the recruitment period. To ensure that the wages listed in its recruitment campaign conform to prevailing wage standards, a wage determination must be obtained from a local state workforce agency. The sponsoring employer must maintain documentation of its recruitment efforts and layoffs in the area of intended employment. Such documentation need not be submitted up front with the PERM labor certification application but must be provided if the application is selected for auditing by the DOL.
Once they complete the recruitment effort, the sponsoring employer prepares and files its PERM application online at a dedicated DOL website. Cases are filed using an application form that contains both basic labor certification and prevailing wage information.
The I-140 Immigrant Visa Petition and Visa Quotas
After the PERM labor certification application is certified, the sponsoring employer files an immigrant petition on behalf of the employee at the point it wishes to formally sponsor the individual for U.S. immigration. The petition is a formal offer of "permanent" employment (that is, employment of indefinite duration) and is presented to the USCIS in an I-140 Immigrant Visa Petition.
The form I-140 provides information about the employer (the "petitioner"), the candidate (the "beneficiary"), and the job being offered. The sponsoring employer must also request on the form that the beneficiary be classified according to a specific preference category.
Under U.S. laws, there are five visa preference categories in which an employment-based immigrant is eligible for assignment. Statutory quotas limit the number of people who can immigrate each year depending both on the preference category in which the person is classified, and the person's country of birth. The vast majority of employment-based immigrants fall into either the second preference (EB-2) or the third preference (EB-3) category.
Generally, EB-2 classification is for individuals who are offered jobs that require either an advanced degree (for example, a master's degree or Ph.D.) or its equivalent (i.e., a bachelor's degree plus at least five years of "progressive" experience). EB-3 classification is for individuals whose jobs don't require such education or expertise. An important distinction is that classification is determined by what education and experience is necessary for the person's job as set forth in the labor certification, not by what education and experience the person actually has.
Quotas allow only a limited number of people to immigrate to the U.S. each year. The quotas depend both on the preference category and the country of one's birth. The laws do not allow more than a certain number of EB-2 and EB-3 individuals to immigrate, and each country is limited to a percentage of the total number of each category. For people from most countries, it makes no difference whether they are classified as EB-2 or EB-3, because these categories are often "current" (meaning there is no waiting time to immigrate). However, Chinese and Indian citizens often face backlogs of visas, and it can take several years before they are allowed to permanently immigrate.
If an employee has to wait to immigrate, how is the length of the wait calculated? The employee must wait until their "priority date" is current before they will be allowed to begin the third step of the immigration process. The priority date is the date the employee's labor certification application was originally filed (generally, the date the application was received by the DOL).
Every month, the U.S. Department of State tracks the number of people who emigrate from all countries in each preference category. Based on those numbers, it designates certain priority dates for each category as “current,” and people holding these or older priority dates are eligible to move to the third step of the immigration process. Historically, EB-2 priority dates have been more favorable than EB-3 priority dates.
Unfortunately, priority dates do not advance at the same rate as the calendar. In some months, the date may not move at all; in others, the date might move forward by weeks or even months at a time.
Adjustment of Status
Adjustment of Status (or the I-485 application) is basically the third and last step for the permanent residency process. Adjustment of Status applies to individuals who are physically present in the United States at the time of filing the I-485. Essentially, the USCIS allows an individual with a current priority date to adjust his or her status from that of a nonimmigrant (e.g., H-1B or L-1 visa holder) to that of a permanent resident. Through Adjustment of Status, the USCIS allows an individual to “immigrate” without having to leave the United States to apply for an immigrant visa through a consulate overseas (often referred to as “consular processing”).
Immediate family members (considered a spouse and children under 21 years of age) can file an Adjustment of Status petition at the same time that the sponsored beneficiary files his or her I-485. Immediate family members can also be included on an already filed I-485 so long as a priority date is current for them to file, and that they are included on the primary applicant’s application before it is approved.
An EAD (Employment Authorization Document) provides work authorization independent of the applicant’s nonimmigrant status while the Adjustment of Status application is pending. It is generally preferable for an applicant to maintain his/her nonimmigrant status while the Adjustment of Status application is pending, even if the applicant holds an EAD. The application for an EAD is filed on a Form I-765 with the USCIS and can be included with the initial Adjustment of Status application. The USCIS typically takes 90 days to adjudicate the I-765 application. Spouses and children who have applied for their Adjustment of Status can also apply for their EAD.
An Advance Parole document (Form I-512) allows Adjustment of Status applicants to leave the United States for personal or business reasons while their Adjustment of Status application is pending. The valid Advance Parole document is presented at the U.S. port of entry for readmission to the United States following international travel while the adjustment application is pending.