EB3 and EB-2 with PERM are the most common employment-based immigrant visa processes. The employer-based application for permanent residence for an employee is a three step process.
The labor certification application (PERM) is the first step of the three-step legal permanent residence process. I have attached a summary of this process.
STEP 1: PERM
First, we must create a workable job description and then obtain a “prevailing wage” from the U.S. Department of Labor using the job description and requirements. After the wage has been obtained and is acceptable, we will need to be certain the Company is showing sufficient income in the tax year to pay the salary. Depending on the wage, I may need copies of the Company’s financial documents such as tax returns, profit/loss statements and quarterly reports.
After we determine the wage and the company’s ability to meet the salary at the time of filing, we would need to advertise for the job to demonstrate that there are no U.S. workers available for the positions that are qualified according to the terms of the job offer. The advertising and recruitment portion of the case usually takes from three to four months. As the employer, your company would need to interview by phone or in person, any facially qualified applications.
We would then prepare a recruitment report and file the ETA 9089 form with the Department of Labor. There is no filing fee for PERM currently however print ads are required and there are advertising costs which vary based on where the ads need to be placed and the length of the ads.
In addition, the Department of Labor has ruled that all costs associated with the PERM application must be paid for by the employer. The approval of the ETA-9089 can take from 90 days to over a year and a half depending on whether or not the case is audited. In the case of an audit we would need to submit all of the advertisements, resumes and requirements of the case to the Department of Labor for review.
STEP 2: I-140 Immigrant Visa
The second step is the I-140 Immigrant Petition filed by the employer to qualify the employee as an immigrant. This step requires that the employer show the ability to pay the wage offered in the 1 st step (PERM) from the first day the PERM application was filed. Also, the employer must show that the alien (your employee) is qualified for the job through submission of reference letters, degrees, certificates, transcripts.
STEP 3: I-485 Adjustment of Status to Lawful Permanent Resident
The third step is the alien’s (your employee’s) application for the permanent residence status. This application focuses on the employee’s back ground such as issues of exclusion, criminal history, security clearance, medical exam, and whether there has been any violation of status while present in the U.S. This step involves an Application for Adjustment of Status (I-485), application for Travel Authorization (I-131) and application for employment authorization (I-765). At this step the immigrant (your employee) can also submit their family member’s applications for permanent resident status, travel authorization and employment authorization, as well
Every case us unique. Depending on the facts the applicant may be able to file Step 2 and Step 3 together in the priority date for his/her PERM petition is current and a visa is available. . If a backlog in visa numbers (waiting line) develops in her category, she would have to wait for the Department of States priority date to be the same as her PERM filing date to file the I-485. In these cases only Step 2 is available for filing and approval. The applicant will then have to wait until their priority date is current and a visa is available in their category to file Step 3, the I-485 petition to adjust status to lawful permanent resident.
This is only a brief summary of the PERM/I-140/I- 485 process. We will need to discuss the facts
of each case in detail.