A Guide to Green Cards Based on Labor Certification - Verrill Dana

A <strong>Guide</strong> <strong>to</strong> <strong>Green</strong> <strong>Cards</strong> <strong>Based</strong> on Labor CertificationOne of the most common routes for obtaining permanent residence through employmentsponsorship is the labor certification process. The three steps in the process are 1) LaborCertification 2) an Immigrant Visa Petition, and 3) either Adjustment of Status (an application <strong>to</strong>change status while in the United States) or Consular Processing (an application outside theUnited States at a U.S. Embassy.Step One: Labor CertificationThe Labor Certification route is available <strong>to</strong> U.S. employers that wish <strong>to</strong> sponsor curren<strong>to</strong>r future employees for a green card. The position offered must be a full-time, permanentposition, meeting the prevailing wage for the position. The process requires the employer <strong>to</strong>prove that no qualified, willing or able U.S. workers (defined as U.S. citizens, permanentresidents, asylees, refugees and amnesty applicants) applied who were qualified, willing, andavailable.After advertising and recruitment, employers file the case electronically with one of theDOL national processing centers (or can optionally paper-file). The form includes details on theposition offered, the prevailing wage, the foreign national employee’s qualifications, andrequires the employer <strong>to</strong> attest <strong>to</strong> the fact that there are pending layoffs, lockouts, otherconditions negatively impacting U.S. workers at the time of filing. Processing times for thisstage vary widely, and the DOL has committed <strong>to</strong> rtying <strong>to</strong> keep certification of “clean” cases <strong>to</strong>60 days from filing. Some cases may be selected for auditing by DOL personnel, eitherrandomly or because responses <strong>to</strong> certain questions on the application trigger a need foradditional information. Where a case is selected for audit, processing times will exceed the 60-day estimate, and there is no set time period for adjudication.Note that none of the costs of labor certification may be borne by the employee, theemployer must pay all costs associated with this process.The Advertising and Recruitment Periods - All advertising and recruitment takes placeprior <strong>to</strong> filing. The advertising and recruitment period must take place at least 30 days but nomore than 180 days before filing. Manda<strong>to</strong>ry advertisements for all cases include: 1) twoSunday newspaper advertisements, (or a journal ad may be substituted for the second ad forcertain types of cases where advertisement in journals is the norm for the position); 2) a job ordermust also be placed with a State Workforce Agency. If the application is for a professionalposition (requiring at least a bachelors degree), the employer must conduct at least threeadditional recruitment steps out of a menu of ten options, in addition <strong>to</strong> the newspaper ads. Theoptions for additional recruitment include the following:1. job fairs2. employer’s website3. job search website4. on-campus recruiting (conducting interviews on campus)5. use of trade or professional organizationsPortland • Augusta • Bos<strong>to</strong>n • Hartford • Washing<strong>to</strong>n, D.C.

Page 26. use of private employment firms7. employee referral program8. use of campus placement office9. local and ethnic newspapers10. radio/television adsNewspaper ads must include the employer name, but will not need <strong>to</strong> include the salary,requirements, or the employer’s address.Posting Notices at the Worksite - As under the old methods of labor certification,employers physically post the job opportunity for 10 consecutive business days in a conspicuouslocation at the worksite (special rules apply for “roving” employees). Additionally, posting mustbe published electronically in “in house media,” if the position would ordinarily be madeavailable <strong>to</strong> employees in that way (for example, on company electronic bulletin boards, orintranets) for the 10-day period. For positions covered by a collective bargaining agreement,instead of posting a notice of the job opportunity, the employer must provide a notice <strong>to</strong> theappropriate bargaining representative.Audits and Recruitment Reports - At the beginning of the process, Employers must besure <strong>to</strong> maintain all documentation of the advertising and recruitment efforts, including originalsof the advertisements, applicant resumes, and the posting notices. A recruitment report must becreated, outlining all the steps taken <strong>to</strong> recruit, the numbers of applicants and legitimate reasonsfor their disqualification of each. If an application is selected for audit, the employer will benotified and required <strong>to</strong> submit documentation within 30 days verifying information in theapplication. The application may be approved, denied or supervised recruitment may be ordered.Failing <strong>to</strong> respond <strong>to</strong> an audit letter could result in both a denial and a requirement <strong>to</strong> usesupervised recruitment in the future. Employers will have 30 days <strong>to</strong> respond <strong>to</strong> an audit letter.All documentation supporting the application must be kept for five years from the date of filing.Legal Standards for Minimum Requirements, and Experience in Related Positions -Positions must not exceed minimum requirements stated in the DOL’s O*NET online job library.For example, PERM requirements for a Computer Software Engineer cannot exceed aBachelor’s Degree plus two years of experience, unless the employer can provide a businessnecessity justification for the additional number of years and/or degree. This also applies <strong>to</strong>special technologies or skills required for the position. Anything above this bare minimumrequires business necessity justification. This entails explaining <strong>to</strong> the DOL how the minimumrequirements bear a reasonable relationship <strong>to</strong> the position in the context of the employer’sbusiness and how they are essential <strong>to</strong> performing the duties. Employers should also beconsistent in their requirements for a particular position – this supports an argument later thatyour “excessive” requirements truly are your minimum requirements. For example, if you havemaintained a practice of requiring five years of experience at a minimum for “Senior SoftwareEngineers,” part of the documentation you would submit <strong>to</strong> support your business justificationclaim will include proof of the qualifications of all others at the worksite in this role.One basic rule of labor certification has always been that experience gained by thesponsored employee after joining the employer cannot be used as part of the minimumrequirement. For example, if your foreign national employee learned JAVA only after joining

Page 3your company, you may not require JAVA of an applicant. There is one exception <strong>to</strong> this underPERM, and that is where you can document that the PERM position is more than 50% differentfrom the duties of the initially-held position. One other change under PERM is that it defines“employer” as an entity with the same Federal Employer Identification Number. Prior rulesdefined “employer” much more broadly.Step Two: Petition for Immigrant Worker (Form I-140)Once you have received a certified Application for Alien Labor Certification, anemployer may file a Petition for Immigrant Worker (I-140 petition) with USCIS <strong>to</strong> sponsor thebeneficiary for U.S. permanent resident status. In this petition, the employer must show that 1)the individual qualifies for the job offered based on the requirements laid out in the Applicationfor Alien Labor Certification and 2) that the employer has the ability <strong>to</strong> pay the proffered wage.Note that both the employee’s qualifications and the company’s ability <strong>to</strong> pay the wage must beverified at the outset of the process. Further, ability <strong>to</strong> pay must be documented from thefiling of the labor certification through approval of the green card.Step Three: Application <strong>to</strong> Adjust Status <strong>to</strong> U.S. Permanent Resident orProcessed Immigrant VisaConsularOnce an employer’s I-140 petition has been approved by USCIS, the employee mayapply for the final step in the green card process, if his/her priority date is current (as describedbelow). At this step, the individual may file either an Application <strong>to</strong> Adjust Status <strong>to</strong> U.S.Permanent Resident with the CIS in the U.S. or an Application for Immigrant Visa and AlienRegistration with a U.S. Consular Post abroad (in the individual’s country of citizenship orcountry of legal permanent residence).Option 1:Application <strong>to</strong> Adjust StatusApplications <strong>to</strong> adjust status are filed on form I-485 with USCIS, and applicationsfor temporary travel (advance parole) and for work authorization may filed with it. Thisapplication is made <strong>to</strong> change from a nonimmigrant status (such as H-1B or L-1) <strong>to</strong> greencard holder. In most cases, H-1B and L-1 holders should maintain their statuses whilethey wait for the green card, even if they have advance parole and a work card.Option 2:RegistrationConsular Processing - Application for Immigrant Visa and AlienAnother option is filing for the green card directly with a U.S. consulate abroad.This application is filed at the National Visa Center in the U.S., which after a few roundsof paperwork is sent <strong>to</strong> the U.S. consulate abroad, where an interview and medical examare scheduled for the employee and his or her family members (if they are also seekinggreen cards). Processing times until the interview date vary widely depending on thecountry. Once approved at the interview, the applicant and family are given 60-dayvisas, during which period they must enter the U.S. in order <strong>to</strong> enter as green cardholders.

Page 4Priority DatesAs mentioned above, an individual may not proceed <strong>to</strong> the third step in the permanentresidence process until his/her “priority date” is current. Permanent resident status may not begranted <strong>to</strong> an individual until an “immigrant visa” is available for him/her. The priority date isthe date that the first step of permanent residence is started. In most cases, the priority date is thedate of filing of the Application for Alien Labor Certification. The DOS bulletin lists the prioritydates for family and employment based permanent residence. Employment based permanentresidence status is broken down in<strong>to</strong> preferences. First preference is for categories such asmultinational managers and executives, or foreign nationals of extraordinary ability. Secondpreference includes positions that require a Master’s Degree and Third Preference includespositions that require a Bachelor’s Degree. The U.S. Department of State (“DOS”) issues abulletin every month that lists the priority dateshttp://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The priority date is frequentlybacklogged for nationals of India, China and The Philippines, in both the Second and Thirdpreferences. Thus, in many instances, individuals who are citizens of India, China and ThePhilippines may not proceed <strong>to</strong> the third step immediately upon an employer’s receipt of anapproved I-140 petition; and must wait until the priority date is current. They may however,extend their H-1B status until their priority date becomes current. Foreign nationals in L-1Bstatus should be sure <strong>to</strong> try <strong>to</strong> change status <strong>to</strong> H-1B early in their stay, so as <strong>to</strong> maximize thechances of getting an H-1B visa.Extension of H-1B Status With <strong>Green</strong> Card in ProcessPreviously, H-1B holders were allotted six years of time in the U.S. in H-1B status, and ifthey did not get adjustment of status filed by that time, were required <strong>to</strong> leave the U.S. for aperiod of one year, before being allowed <strong>to</strong> apply for another six years of H-1B status. A lawenacted on Oc<strong>to</strong>ber 17, 2000 (“AC-21”) allows H-1B visa holders with pending I-140 petitions<strong>to</strong> extend their status beyond the six-year limit if 365 days or more have passed since the originalfiling date of their labor certification or their I-140 filing date. The extensions are <strong>to</strong> be grantedin one-year increments until a final decision is reached on their permanent residence. Further,once an I-140 is approved, it “locks in” the priority date for any other subsequently-filed I-140for the employee. Also, once the I-140 is approved, foreign nationals may extend their statusesin three year increments until their priority dates become current.The provision also allows employment-based adjustment of status applicants (from anynonimmigrant status) whose I-485s have been pending for 180 days or more <strong>to</strong> change jobs oremployers without invalidating the underlying I-140 or labor certification, as long as the new jobis in the same or a similar occupational classification as the one for which the petition was filed.This newsletter is intended for general information purposes and as a service <strong>to</strong> clients and friends of Verrill Dana, LLP. Thispublication, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed aslegal advice or a legal opinion on any specific facts or circumstances, nor does it create at<strong>to</strong>rney-client privilege.