FAQs about Employment-Based Green Card Process through a Labor Certification (PERM)

June 12, 2023
Anna Buskila

The process for securing employment-based legal permanent resident status (green card) in the United States through a labor certification (PERM) is a three-step process.

Step 1: Certified labor certification (PERM) from the Department of labor (“DOL”);

  1. Developing and finalizing PERM Job Description;
  2. Filing the Prevailing Wage Request with the DOL and obtaining the required experience letters from prior employers;
  3. Conducting PERM recruitment process (labor market test);
  4. Preparing and filing PERM application with the DOL;

Step 2: Form I-140, Immigrant Petition for Alien Worker with USCIS;

Step 3: Immigrant visa at U.S. Consulate abroad or Adjustment of Status (“AOS”) with USCIS.

The first two steps require significant involvement on the part of the employer, while the last step is primarily the responsibility of the foreign national. Below are answers to frequently asked questions by our clients about PERMs and I-140s:

  1. 1. Why is the PERM process taking so long? Can it be expedited?
    • The length of the PERM process depends on the DOL’s processing times and employer’s and employee’s responsiveness to our inquiries and requests for information and documentation. The DOL processing times are long, and they constantly change. We provide timelines based on the DOL processing times at any given moment.
    • It is impossible to expedite any steps with the DOL by paying extra fees or placing a special request. The DOL does not provide this option. The only option to expedite the PERM process by approximately 60 days is to conduct simultaneous PERM recruitment, which means conducting labor market test while the prevailing wage is still pending. This strategy presents certain risks to the sponsoring employer and must be approved by the sponsoring employer.
  1. 2. Now that we transferred my H-1B to the new employer can we transfer my I-140 as well?
    • I-140 is not transferrable to a new employer. Your new employer must go through a new PERM process before they can file a new I-140 for you.
    • However, you will reserve your priority date from your prior I-140. Also, assuming your I-140 wasn’t revoked or withdrawn within 6 months of approval, you can also use an I-140 approved for a prior employer to extend your H-1B status with a new employer.
  1. 3. I have an I-140 approved from my prior employer. This I-140 is not revoked or withdrawn. I work at another company now. My priority date is current. Can we file for AOS and port to the current employer after 180 days without going through the new PERM process?
    • This strategy is not recommended for the following reasons. First, the employment offer from the prior employer must be continuing and they will have to agree to attest to that through I-485J. Second, by filing AOS based on prior I-140, you will be demonstrating that you intend to accept the offer of employment when this is not true. Filing AOS when not intending to work for that role can be seen as misrepresentation and can have severe consequences. Finally, your case can be approved in less than 6 months, and you may not have an opportunity to port.
    • In 2000, Congress enacted the American Competitiveness in the Twenty-First Century Act of 20001 (AC21) allowing certain applicants experiencing delays in the employment-based immigrant visa process some flexibility to change jobs or employers while their I-485 adjustment of status applications are pending. It’s an opportunity to proceed with the AOS when the employer was indeed changed after the green card application had been pending for more than 6 months.
  1. 4. I have an I-140 approved in the EB-3 category and I saw I would be current if I have an EB-2.  Can we file to change the underlying basis to EB-2?
    1. The EB-2 classification can be downgraded to EB-3 during the I-140 step, but the EB-3 classification cannot be upgraded to EB-2 without going through a new PERM process. Therefore, it’s always beneficial to have an EB-2 classification when possible.
    2. The minimum requirements set forth for the PERM position are the basis for the preference category (i.e. EB-2 vs. EB-3). If the minimum requirements for the position are a Master’s degree (or higher), or a Bachelor’s degree plus 5 years of post-baccalaureate work experience, then the position will qualify for EB-2 classification. Any position requiring less than a Master’s degree (or higher), or a Bachelor’s degree plus 5 years of experience, will be EB-3. The category is based on the requirements for the position, and not the actual education of the employee, even if higher.
  1. 5. When will I get the official approval notice of my I-140?
    1. The I-140 is the petition filed by your employer and you are the beneficiary of the petition. The I-140 process belongs to and is controlled by the employer, so it is the property of the employer. We will provide you with a copy for your records and use but the official copy is retained by our law firm on behalf of the Employer.
  1. 6. For how long do I need to work for the sponsoring employer upon receiving my green card?
  1. 7. Do I need to be currently employed by the sponsoring employer to start the PERM process?
    • You do not have to be employed by the sponsoring employer during the process, However, you and the employer are committing to work for the sponsoring employer upon receiving your green card. Refer to Question 6 above for more details.
  1. 8. Do I need to be in the United States to be a beneficiary of the employment-based green card process based on PERM?
    • You can either be in the United States or you can be abroad to start the employment-based green card process based on PERM. If you are abroad, you will need to go through the consular processing (Step 3 described above) and will receiving your green card upon entering the United States.
  1. 9. Can I be sponsored for an employment-based green card if I have DACA?
  1. 10. Once my employer has initiated the PERM process for me, can I file for an Employment Authorization Document (“EAD”)?
    • Being a beneficiary of the employment-based green card process through PERM does not provide you with any immigration benefits, including staying and working in the United States, until the process has been completed through consular processing (Step 3) or until you filed an AOS (Step 3) and received an EAD through a pending AOS.
  1. 11. I own a U.S. company. Can my company sponsor me or any of my relatives for an employment-based greed card?
    • In rare circumstances, this can be accomplished if the sponsored owner is fully removed from the hiring process. This is a very high standard to overcome with the DOL. The employer must certify that the job opportunity has been and is clearly open to all U.S. workers.
    • The PERM application requires indicating whether the beneficiary has any ownership interest or familiar relationships with the owners and answering “YES” will trigger an audit from the DOL. This creates a presumption that the job opportunity is not clearly open to U.S. workers (potential influence and control over a job opportunity by the sponsored employee). When determining whether a bona fide job opportunity exists, the DOL uses the totality of the circumstances test, which is difficult to overcome.
    • The DOL defines “familial relationship” for the purposes of the PERM application as “any type of relationship of blood, marriage, adoption, or distant relation.” This definition includes close family members, grandparents, grandchildren, cousins, nephews, nieces, and relationships established through marriage.
  1. 12. What is the minimum size of the company that can be a sponsoring employer?
    1. The law does not define the size of the company, so it can be any working company whether big or small. However, it must be a company actively engaged in doing business and not just a registered entity without any operations and income.
    2. During the I-140 step (Step 2), a sponsoring employer must show the ability to pay the offered wage from the date of filing the labor certification until the sponsored employee becomes a lawful permanent resident. In general, there are three basic approaches that can be used to establish a petitioner’s ability to pay:
      1. The petitioner paid the beneficiary a salary equal to or greater than the offered wage in the year of filing.
      2. The petitioner’s net income in the year of filing was equal to or greater than the offered wage.
      3. The petitioner’s net current assets in the year of filing were equal to or greater than the offered wage.
  1. 13. What is generally required from my employer in this process?
    • The PERM and I-140 require significant involvement on the part of the employer. We will need a designated person at the company to reach out to for any information and evidence required for the process. The employer must provide us with basic information about the company and sponsored position. However, we will provide full support and guidance to the designated contact person on how to approach the process.
  1. 14. I do not have any professional degrees. Can I still be sponsored through an employment-based green card process through PERM?
    • If the PERM position does not require a degree and you have skills and experience required for the position, you can definitely be sponsored. Unlike some other employment-based visas and green card options, PERM is not designed exclusively for professional positions.
    • We specialize in all kinds of PERM processes. For example, we handle cases for nannies, truck drivers, carpenters, warehouse workers, construction workers, office staff, technicians, engineers, financial professionals, accountants, auditors, analysts, software developers, testers, data scientists, architects, and many more.

If you have any additional questions, do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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