The path to a “Green Card” through the “PERM” Program

The most common way for foreign nationals to obtain permanent resident status through employment is based upon the labor certification (PERM) application system. The firm has extensive experience in assisting employers with filing for green cards for employees based upon the PERM application system. For more information, please refer to the overview below titled:

We also assist clients with visa options that allow for filing of an immigrant visa petition without having to file a PERM labor certification application.

Green Card Alternatives to “PERM”

The following visa categories allow the filing of an immigrant visa petition without first having to file a PERM labor certification application. The majority of these require an offer of employment except petitions based on “extraordinary ability” or National Interest Waivers. Trow & Rahal works with individuals and employers to file green cards in these categories, and files under the labor certification (PERM) application system only if one of the following visa options cannot be used. A brief overview of each visa option follows.

Green Card Application via Labor Certification Application under “PERM” Program

There are 3 steps to obtaining permanent resident (green card) status based upon the Program Electronic Review Management (PERM) application system, which requires an employer to conduct recruitment for the foreign national’s position and demonstrate that no qualified and available U.S. workers can be found for the position.

STEP 1: PERM Labor Certification Application

The PERM program is the electronic attestation program of the Department of Labor (DOL) under which all labor certification applications must be filed. The PERM system requires that the employer first obtain a prevailing wage determination and then conduct recruitment within the 180 day period prior to filing the on-line application. Once the application is filed, the DOL requires that the employer maintain a file of documentation of the recruitment and the employer’s inability to find qualified and available U.S. workers.

Once the on-line PERM application is filed, it can be approved outright or it can receive an audit. About 50% or more PERM cases filed with the DOL receive an audit. If approved outright, the adjudication typically takes 3-6 months. If an audit is conducted, then the timing of the adjudication of the application is delayed by 12-18 months.

The date the PERM application is filed is the “Priority Date” of the foreign national’s application, which is basically the person’s place in line for an immigrant visa number. The third step of this green card process cannot be filed until there is an immigrant visa number available for the foreign national beneficiary.

STEP 2: Immigrant Visa Petition

After the DOL approves the PERM labor certification application, the next step is to prepare and file an immigrant visa petition (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS). By filing the immigrant visa petition, the employer is indicating that

(1) it has been unable to find qualified U.S. workers for the position; and

(2) that it has identified a foreign national who is qualified for the U.S. position. It must show, in general, that the foreign national met all of the minimum requirements for the position as indicated in the advertisements prior to being hired by the employer; and it presently has the ability to pay the offered wage and had the ability to pay the offered wage when it filed the labor certification application with the DOL.

STEP 3: Adjustment of Status Application or Immigrant Visa Application

If the foreign national is in the U.S. with temporary work authorization, the last step in the process is to file an application to adjust the foreign national’s immigration status to permanent resident status.

This step cannot be taken until an immigrant visa number is available. There is a backlog in many categories, and an immigrant visa number is only available when the person’s priority date (date the PERM application is filed with the DOL) becomes “current” by reaching the front of the backlog.

If the foreign national resides outside of the U.S., or is ineligible to adjust status in the U.S., the last step is to file an immigrant visa application at the U.S. embassy or consulate in the foreign national’s country of nationality or last foreign residence.

As with the adjustment of status, this last stage cannot be filed and processed until an immigrant visa number is available for the case, meaning that the priority date is current.

Extraordinary Ability (EB-1a)

To obtain permanent resident (green card) status, a foreign national can avoid the labor certification (PERM) process if he or she can qualify for an EB-1a Visa (referred to as “Employment First Preference” category). The eligibility requirements are similar to the O-1 temporary visa, except a higher standard is usually applied.

A foreign national is eligible to file a petition as a person of extraordinary ability, or have an employer file, if able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics though sustained national or international acclaim. This means that the foreign national has become one of a few who have reached the top of their field and their achievements must be recognized through extensive documentation. No offer of employment is required.

To qualify for the EB-1 extraordinary ability, the foreign national must have won a prize or an award such as the Nobel Prize, or provide documentation in three of the following areas:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

Even if the foreign national is able to provide documentation in at least 3 of these categories, s/he must also demonstrate that s/he is one of the few who have reached the very top of his/her field and has sustained national or international acclaim.

Outstanding Professors and Researchers (EB-1b)

A foreign national can avoid the labor certification (PERM) process if he or she can qualify for an EB-1b Visa (referred to as “Employment First Preference” category).

The foreign national must have a Ph.D. degree; be recognized internationally as outstanding in a specific academic field; have at least three years of experience in teaching or research in that field; and seek to enter the U.S. for: (1) a tenured or tenure-track position to teach at a university or other institution of higher education; or (2) a comparable position to conduct research at a university or other institution of higher education; or (3) a comparable position to conduct research with a private employer that employs at least three persons full-time in research activities and has achieved documented accomplishments in the academic field.

Multinational Executives and Managers (EB-1c)

To obtain permanent resident (green card) status, a foreign national can avoid the labor certification (PERM) process if he or she can qualify for an EB-1c Visa (referred to as “Employment First Preference” category).

The foreign national must be employed or be seeking employment in the U.S. as an executive or manager with the same company (or a parent, subsidiary or affiliate) that employed him outside the U.S. as an executive or manager for at least one year during the past three years (or for at least one year during the three years prior to entry if already in the U.S.). This category corresponds to the L-1 temporary visa category, except that “specialized knowledge” workers are not included, and the sponsoring company must show that it has been doing business in the U.S. for at least one year before commencing the application.

If a person first came to the U.S. in L-1 visa status for a new office / start-up L-1 then this immigrant visa petition as a multinational manager cannot be filed until the U.S. company has been in business for at least one year.

National Interest Waiver (EB-2 Visa)

A foreign national can also avoid the labor certification (PERM) process if s/he can qualify for an EB-2 Visa (referred to as “Employment Second Preference” category).

To qualify, his or her work must be deemed to be in the national interest of the U.S. and the individual must have “Exceptional Ability” or an “Advanced Degree.”

This category requires that a person have an Advanced Degree or Exceptional ability in the arts, sciences or business, which means a degree of expertise significantly above that ordinarily encountered. Extensive documentation is required to show that the foreign national’s work will be in the “national interest” of the United States and overrides the government’s interest in doing a PERM application to test the U.S. market for qualified and available workers. It also requires a job offer from an employer.

Special Immigrants (EB-4 Visa)

A foreign national can avoid the labor certification (PERM) process if he or she can qualify for an EB-4 Visa (referred to as “Employment Fourth Preference” category).

The special immigrants eligible for the fourth preference visa include:

  • Religious Ministers and Workers
  • Broadcasters
  • Iraqi/Afghan Translators
  • Iraqis Who have Assisted the United States
  • International Organization Employees
  • Physicians
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Retired NATO-6 Employees
  • Spouses and Children of Deceased NATO-6 Employee

To learn how our Winning Immigration Strategies can work for you, contact us today.

Phone: 202-537-4830

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