Employer-Sponsored Immigrants

Immigrant status, or permanent residence in the U.S. (the "green card"), allows an employee to live and work in the U.S. and apply for U.S. citizenship after five years. Employer-sponsored immigrants fall into three categories:

First Preference: Persons with "extraordinary ability" in the sciences, arts education, business, or athletics; outstanding professors and researchers; multinational executives and managers

Second Preference: Advanced degree holders and persons with "exceptional ability" in the sciences, arts or business

Third Preference: Skilled workers in jobs requiring at least two years' experience; professionals holding at least a bachelor's degree; unskilled workers in shortage occupations

Labor Certification Procedure (PERM):   Before applying to the Immigration Service, an employer usually must first obtain alien employment certification (labor certification from the Department of Labor - DOL). This is a statement from DOL that there is a shortage of "able, willing and qualified" U.S. citizens or permanent residents for the particular job, and that the employer is paying the prevailing wage for the labor market within commuting distance o the job. Labor certification is not a work permit. Only the Immigration Service has authority to grant work authorization in the U.S.

There are two major routes through the labor certification process:

1. Schedule A Pre-Certification - Certain occupations are pre-certified and do not require an individual determination from DOL. These include physical therapists and registered nurses, and certain outstanding scientists and artists. In these cases, forms are filed directly with the Immigration Service, cutting down on processing time.

2. Labor Certification (PERM) - processing under DOL. PERM is an employer-driven process and the resulting labor certification is a certification that there are no able, willing or qualified U.S. workers to perform the job duties at a minimum level. The attorney's role is to analyze the position duties and requirements and the applicant's education and experience, correctly code the occupation and obtain an acceptable determination of the appropriate prevailing wage level at the Employment Development Department (EDD), assist in developing an acceptable recruitment plan to meet DOL guidelines, analyze recruitment progress reports from the employer, assist in preparing a summary of the recruitment process to be retained by the employer in case of a DOL audit, and file and track the application. The employer must demonstrate acceptable recruitment during the 30-180 day period immediately prior to filing. Recruitment must include, at a minimum, placement of an internet job order with the State Employment Service (EDD in California), at least two Sunday newspaper ads, posting in-house, and, for professional jobs, at least three additional recruitment steps such as ad placement on the employer's website, job fairs, use of private employment agencies or use of other designated recruitment sources. If the employer is required to provide special justification to DOL, for example an appeal regarding the prevailing wage determination, documentation of business necessity for certain special requirements for the position, or if the employee has an ownership interest in the business, additional legal fees will apply calculated on an hourly basis.

Procedure at Citizenship and Immigration Services:    After DOL issues a labor certification under PERM, our office prepares and files the employer's petition on Form I-140 with the Citizenship and Immigration Services (CIS) in Laguna Niguel, California to classify the applicant under one of the three employer-sponsored preference categories. CIS then examines the employee's qualifications in detail to determine that employee meets all of the job requirements. CIS also is responsible for determining that the employer has the ability to pay the prevailing wage from the date the PERM application is filed until final approval of the case by CIS.