PERM for Scientists: Labor Certification for Permanent Residence
The Most Common Green Card Path
In most cases, foreign scientists seeking to obtain U.S. permanent residence through employment must be the beneficiary of an approved application for alien employment certification. The certification process, now referred to as PERM, ensures that there are no U.S. workers who are qualified and available for the position being offered. It also certifies that employment of the foreign worker will not adversely affect the wages and working conditions of similarly-employed U.S. citizens and permanent residents.
PERM labor certification is only the first in a 3-stage process leading to permanent resident status for the recipient of a permanent job offer with a sponsoring employer. However, it is by far the most challenging and time-consuming part of the overall process, with many potential pitfalls. The employer must take a number of actions according to very specific guidelines and timeframes. All costs relating to preparation and filing of the labor certification must be borne by the employer. The employer must also commit to paying the foreign national the “prevailing wage” once s/he begins working in the permanent position.
The PERM process begins with the official job offer, supported by a detailed job description reflecting both the duties of the position and the actual minimum required qualifications for the position offered. To determining the prevailing wage, an application is filed with the Department of Labor (DOL). The job duties, position requirements and job location are used to categorize the position within DOL’s occupational classification scheme. Next, the employer must post a printed job notice on its premises for at least 10 consecutive business days. To attract applicants from outside the company, a job order is placed with the State Workforce Agency, and the position is advertised in a Sunday newspaper. For most professional scientist positions, additional external recruiting methods are also required.
Once the recruiting is complete, the employer must review resumes from interested applicants to determine if there are any qualified U.S. workers willing to accept employment at the prevailing wage. If appropriate, interviews are held with applicants who appear qualified. The entire process must be carefully documented so that backup evidence can be provided in the case of an audit by the Department of Labor. All of these steps can take up to 6 months.
Once filed, the labor certification application will ordinarily be adjudicated within 2-4 months. However, if an application is selected for an audit (either randomly or based on case specifics), the employer will be asked to submit additional documentation within 30 days. Unfortunately, DOL may require 6-9 months to issue a decision on the audited PERM application in the case. Although the risk of an audit is always present, working with an experienced immigration attorney to ensure that the PERM process is carefully adhered to can reduce the likelihood of a long and frustrating delay.
Presuming the labor certification application is approved, the employer moves on to stage 2 of the sponsorship process, filing an I-140 Immigration Petition for Alien Workerwith USCIS. Among the documentation included with the I-140 are the approved labor certification, evidence that the employee meets the advertised requirements for the position, and proof that the employer has the ability to pay the prevailing wage. The current timeframe for the adjudication of an I-140 is 4-8 months. A foreign scientist’s priority date will be the date on which an approved PERM application was filed.
In the 3rd and final stage of the process, the applicant files for permanent resident status via adjustment of status (if already present in the U.S.) or consular processing (if outside the U.S. or ineligible for adjustment) However, this step cannot be initiated until a visa is available. For some time now, demand for employer-sponsored visas has exceeded supply, leading to backlogs in visa availability that vary by country and preference category. This is an especially acute problem for nationals of China and India, some of whom are currently waiting decades for their priority dates to become current. Once a visa is available, the adjustment of status or consular processing applications are typically adjudicated within 4-8 months.
PERM may apply to several types of employees depending on their educational credentials and work history. The EB-2 category is for those with advanced degrees (Masters or higher) whose work does not qualify them for a National Interest Waiver. In some cases, scientists with a Bachelor’s degree and 5 years of progressive post-Bachelor’s professional experience may also be eligible for the EB-2 classification.
The EB-3 category applies to many kinds of employees, including unskilled and skilled workers and professionals. A scientist or technician with an Associate’s degree can qualify for EB-3 classification as long as his or her employer can demonstrate that two years of higher education, training or job experience (or any combination of the three) is normally required for entry into the specified occupation.
It should be noted that educational standards for immigration purposes are always based on degrees awarded by U.S. institutions. In some countries, students may complete a Bachelor’s degree in 3 years. Since U.S. Bachelor’s degrees require four years of study, 3-year degrees are not viewed as equivalent. A determination of degree equivalency is part of every employment-based immigration process.
“Special Handling” for College and University Teachers
A college or university that wishes to employ an alien in a teaching role may take advantage of a streamlined PERM procedure, known as “Special Handling”. This enables the educational institution to hire the person most qualified for the position, rather than someone who only meets the minimum specified requirements. When filing the labor certification application with DOL, the employer must demonstrate that it conducted a previous competitive recruitment and selection process involving at least one advertisement in a national professional journal. The job title need not include the words “teacher” or “professor” as long as it can be documented that classroom teaching is associated with the position and can be documented.
The PERM process is an employment-based permanent residence option for scientists who are not eligible for any of the categories bypassing labor certification (e.g. EB-1A, EB-1B, EB-2 Pre-Certified, EB-2 National Interest Waiver). The successful applicant need only demonstrate that he or she meets the minimum requirements for the position, rather than showing a level of accomplishments far above others in the field.
The PERM-based process is complex and lengthy, placing substantial burden on the employer. There is a substantial backlog in the EB-3 category for all countries and in EB-2 for China and India. This means that an individual with an approved immigrant petition may have to wait a number of years to enter the U.S. on an immigrant visa or adjust status to permanent resident. While the sponsored individual waits for his priority date to become current, an employer may find that it can no longer employ him. If the applicant chooses or is forced to begin the PERM process again with a new employer, he will lose his priority date. In addition, minor children of a prospective immigrant may “age out” and no longer be eligible for derivative permanent resident status.
Most scientists who are the beneficiary of a PERM application are already in the U.S. working for their employers in a temporary status. The most common nonimmigrant status is H-1B. If a labor certification application is filed with the Department of Labor before the end of the employee’s 5th year as an H-1B, a one year extension of that status will be granted. With an approved I-140, the intending immigrant may apply for further extensions in 3-year increments.
The PERM employment certification process is the most common way for foreign nationals in science professions to gain permanent resident status. While there are many steps on the road to an approved I-140, and quite often a long wait for a priority date to become current, it is a well-established path offering a broad range of patient applicants the opportunity to attain their immigration goals.