- 1. Overview:
A “green card” is the common name for the document that permits a non-U.S. citizen to live in the U.S. permanently. Green cards are awarded to non-U.S. citizens mostly based on sponsorship by a family member or sponsorship by a current or prospective employer.
Green cards based on sponsorship by a current or prospective employer are called “employment- based” or “EB” green cards. There are three categories of employment-based green cards.
The first category, called EB-1, is for Priority Workers. Priority Workers include aliens with extraordinary ability, outstanding professors and researchers, and multinational executives and managers (the term “alien” means a person who is not a U.S. citizen).
The second category, called EB-2, is for professional workers with advanced degrees or aliens with exceptional ability. In general, “professional workers with advanced degrees” are workers with Masters or Ph.D. degrees and, in some cases, workers with Bachelors degrees plus five years of work experience in the same field. “Aliens with exceptional ability” are aliens with a high level of professional achievement, but slightly less than what is required for aliens with “extraordinary ability” under the EB-1 category.
The third category, called EB-3, is for professional workers, skilled workers, and unskilled workers. “Professional workers” are workers in positions that normally require a Bachelors degree. “Skilled workers” are workers in positions that normally require at least two years of professional training or work experience. “Unskilled workers” are workers in position that normally require less than two years of training or prior work experience.
The procedures for filing EB-2 and EB-3 green cards applications are very similar. Normally, a U.S. business must agree to serve as the employer. The employer can be a business that the foreign worker already works for (usually with a temporary visa, such as an H-1B Visa) or it can be a business that does not currently employ the foreign worker, but would like to employ the worker in the future when the green card is approved.
The employer is also sometimes called the “petitioner,” because the employer signs and submits a “petition” (application) with the government on behalf of the foreign worker. The foreign worker is often called the “beneficiary,” because he or she is the person who will receive the benefit when the green card petition (application) is approved.
- 2. Application Process for EB-2 or EB-3 Application
An EB-2 or EB-3 Green Card application is normally a three step process. The following information is only a summary. It does not constitute legal advice and should not be used by applicants as filing instructions.
The EB-2 and EB-3 Green Card application consists of the following steps:
- Step 1: PERM Labor Certification
- Step 2: I-140 Skilled Worker Petition
- Step 3: Adjustment of Status or Consular Issuance of Green Card
STEP 1: PERM LABOR CERTIFICATION:
Labor Certification is a process in which the employer proves that it cannot find a U.S. worker who is available and qualified to fill the position that has been offered to the foreign worker.
The PERM Labor Certification process is not controlled by the U.S. Citizenship and Naturalization Service (USCIS) (formerly called the INS). It is controlled by the U.S. Department of Labor (DOL) with assistance from individual state employment agencies.
The purpose of PERM Labor Certification is to prove that permanent employment of the foreign worker will not (a) affect the wages and working conditions of similarly situated U.S. workers or (b) take away jobs from qualified and available American workers.
The DOL protects “the wages and working conditions of similarly situated U.S. workers” by requiring that an EB-2 or EB-3 employer pay the “prevailing wage” for the position. The DOL determines the required wage, usually based on a government wage survey. We have access to the wage survey data, so we can often tell ahead of time what wage will apply in a case.
The DOL makes certain that the foreign worker will not take away jobs from qualified and available American workers by requiring that an EB-2 or EB-3 employer conduct a recruiting process to fill the position. The recruiting process is designed to test whether any qualified American workers apply for the position and are immediate available to work in the position.
The specific recruiting procedures required by the government differ, based on whether the job is classified as “professional.” If the position is not classified as professional, then the recruiting procedures required are as follows:
- The employer must place a 30-day “job order,” (notice of an available job) with the local office of the state employment agency.
- The employer must place an advertisement in a local newspaper on two Sundays.
- The employer must post a notice in a conspicuous location at the place where the foreign worker would work.
Our law firm will assist the employer with each of these steps. We place the job order, we place the advertisements (with the employer’s permission) and we provide the posting notice.
If any U.S. workers apply for the position based on any of the recruiting steps described above, then the employer must evaluate the applicants. Applications from workers who clearly do not meet the minimum requirements listed for the position can be disregarded. Applications from workers who may possibly be qualified for the position require further action. In many cases, the employer will have to interview these applicants to determine whether they are qualified and available for the open position. We provide the employer with detailed instructions on how to handle job applications from U.S. workers.
If no qualified U.S. workers apply for the open position within 30 days after the 30-day job order expires, then the employer may submit the Labor Certification application to the Department of Labor. Processing of the application may be as fast 45 days. However, the Department of Labor reserves the right to “audit” certain applications, which can delay processing times significantly.
If the position is classified as professional, then the employer must do more recruiting steps in addition to those listed above. Specifically, the employer sponsor must recruit for the open position using at least three of the following methods: job fairs, employer web site, job search engine, on-campus recruiting, private employment agency, employer’s referral incentive program, campus placement office, local/ethnic papers, and radio/TV ads. This additional recruiting must occur between 180 and 30 days before filing the application. We can assist the employer with this additional recruiting.
When considering a PERM Labor Certification application, please note that ALL of the following rules and procedures apply:
§ The job offered to the foreign worker must be full-time. |
§ The job description and job requirements cannot be “unduly restrictive.” The job opportunity cannot be described with unusually restrictive requirements or duties that are out-of-the ordinary. Requirements that seem tailored to the foreign worker’s particular education or work experience may be rejected by the DOL or may trigger an audit. Foreign language requirements are reviewed by the DOL very carefully and are best avoided unless the employer can prove that the foreign language is a “business necessity.” The job description cannot seem to be a combination of two jobs in one. |
§ The wage offered to the foreign worker must be 100% of the “prevailing wage.” The DOL normally determines the “prevailing wage” for the position offered, by using a wage survey. The survey breaks down each job into four wage levels based on the level of training and supervision required. We have access to the wage data and can usually tell ahead of time what wage and wage level will apply, but the DOL makes the final determination. The employer must agree to pay 100% of the prevailing wage as determined by the DOL. |
§ Employer must comply with government recordkeeping requirements. The employer must retain all documents related to the Labor Certification application for five years. This includes copies of newspaper advertisements, evidence of other forms of recruiting (if required), the 10-day job posting, applications from workers, and a written summary of the results of the employer’s recruiting efforts, etc. |
§ In-house media requirements: If the employer has an in-house media (e.g. electronic or print newsletters), information about the job offer must be posted in the media using the employer’s customary procedures for job openings. |
§ Standard recruiting procedures required in ALL cases: The employer must place a 30-day job order with the state workforce agency (we do this for the employer). Also, the employer must post information about the job offer in a conspicuous place for 10 consecutive business days. Finally, the employer must place two Sunday advertisements for the position in a local newspaper. |
§ Special recruiting procedures required for PROFESSIONAL jobs: In addition to the standard procedures listed above, the employer ALSO must perform three other forms of recruiting from the following list: job fairs, employer web site, job search engine, on-campus recruiting, private employment agency, employer’s referral incentive program, campus placement office, local/ethnic papers, radio/TV ads. This must occur between 180 and 30 days before filing the application. We will prepare the ad copy for the employer’s approval. We have a list of jobs that are considered “professional.” |
§ Additional recruiting requirements when there have been layoffs: Additional recruiting steps will be required if the employer has had layoffs in the past six months. If this applies to you, please notify us immediately. |
§ The employer cannot be owned or controlled by a family member who is related to the foreign worker (and the employer cannot be owned or controlled by the foreign worker). A Labor Certification application will likely not be approved, if there is a family relationship between the foreign worker and employer (this includes the employer’s shareholders, officers or key employees). For companies with less than 10 workers, the government may also seek information on the family relationship between the foreign worker and any employee. |
§ The employer must prove that it has “the ability to pay” the foreign worker. During the application process, the employer must prove that it can pay the salary of the foreign worker starting in the year that the Labor Certification application is filed. To prove this, the government usually requires the employer’s business income tax return for the year that the Labor Certification application was filed. The tax return should conclusively show that the employer’s net income (profit) or net assets (assets minus liabilities) are higher than the prevailing wage required for the position. Alternatively, an employer can show that the foreign worker is already on payroll and already earns the prevailing wage. This requirement can make an application difficult when the employer is a new business, or a small business, or a business where the owner refuses to provide a copy of the business tax return. |
§ A PERM Labor Certification application does not make a foreign worker “legal” or provide employment authorization. The PERM Labor Certification process is a prerequisite to obtaining a green card for a foreign worker, but it is not work authorization in and of itself. Unless the foreigner has permission to work through some other means, such as a temporary visa that authorizes employment, the employer cannot legally employ the foreign worker while the Labor Certification application is pending. Employer can be subject to fines and other penalties for providing unlawful employment to foreign workers. |
§ Information for foreign workers already working in the U.S. illegally: |
§ What happens when qualified American workers are available? A PERM Labor Certification application will not be approved if the recruiting process reveals that there are qualified and available American workers for the position—even if the foreign worker is better qualified. While this effectively terminates the application process, the employer is not required to hire the American worker. And, the employer may try another application using a different strategy. |
Our law firm guides the employer and the foreign worker through all parts of the PERM Labor Certification process. This includes developing case strategy, assisting with the recruiting procedures, assisting with recordkeeping and posting requirements, providing prevailing wage information, reviewing job applicants and advising the employer on interview procedures.
STEP 2: I-140 GREEN CARD PETITION:
Once the PERM Labor Certification application is approved by the DOL, the employer must file an I-140 Green Card Petition with the USCIS (formerly called the INS). The primary purpose of this petition is (a) to make certain the PERM Labor Certification application has been approved, (b) to make certain that the employer has the ability to pay the foreign worker the wage offered, and (c) to make certain that the foreign worker is qualified to fill the position offered.
In the I-140 Green Card Petition, proving the employer’s ability to pay the wage offered is an extremely important issue. The USCIS normally verifies the employer’s ability to pay using the employer’s business income tax return. Specifically, they look at the tax return to see if the net income (profit) OR the net current assets (working capital) is equal to or exceeds the prevailing wage required for the foreign worker, starting the year that the labor certification application was filed and continuing until the year the I-140 petition is approved. Net current assets are not the same as net assets. To determine net current assets, the government generally uses column d on Schedule L of the employer’s tax return. It adds items 1 through 6 and subtracts items 16 through 18 from the total. The sum must be equal to or greater than the prevailing wage rate. If the net profit or net current assets are not equal to or greater than the prevailing wage in each year in question, then the I-140 petition can be denied. In the alternative, an employer can show that it has the ability to pay the foreign worker if the foreign worker has been on payroll since the labor certification was filed and has consistently earned a wage equal to or greater than the prevailing wage. In some cases, other forms of evidence may be submitted to show ability to pay, but this is rare. We can provide more information about this, if it is an issue in a case.
STEP 3: ADJUSTMENT OF STATUS AND CONSULAR PROCESSING:
The final step in the green card application process is called either “adjustment of status” or “consular processing.” In this final step, the USCIS makes certain that the foreign worker is eligible for green card issuance. It is like a background check. The USCIS tries to determine whether the foreign worker is living in the U.S. legally, working with authorization (if applicable), has a criminal background, or has any other problems that would make the foreign worker inadmissible under U.S. immigration law.
If the process occurs inside the U.S, it is called “adjustment of status.” If the process occurs outside the U.S. (at a U.S. embassy or consular abroad), it is called “consular processing.” We can provide more detailed information about this process at a later date. However, it is important to understand the following points:
- A temporary Employment Authorization Document (EAD card) and Advance Parole (travel document) are available to the worker and his or her family members while an adjustment of status application is pending.
- EAD cards and Advance Parole documents are approved for 12 months only, but can be renewed. Renewal application should be submitted at least four months prior to expiration to ensure continuity of employment authorization and permission to travel.
- Concurrent filing of I-140 petition (step 2) and adjustment of status (step 3) is now possible. Formerly, adjustment of status (step 3) could only be filed after I-140 petition (step 2) was approved. But, due to retrogression of the EB-3 category, concurrent filing will become increasingly rare, see more about retrogression below.
- During adjustment of status process, the employer must continue to exist and operate and will have to certify that job opportunity is still available to the foreign worker.
- When an adjustment of status has been pending for six months or more, the foreign worker is authorized to accept another job if it is in a “same or similar” occupation as the job offered by employer.
Special note on retrogression or unavailability of EB Green Cards: Due to limits in the number of employment based green cards that the government issues each year, the USCIS periodically announces that there are or will be waiting times to file an adjustment of status or consular processing application. These waiting times, if applicable, change on a monthly basis. The employer and sponsored worker should discuss this issue with the attorney throughout the green card application process.
- 3. Costs and Processing Times
In the past, either the foreign worker or the employer can pay the costs of the EB-2 or EB-3 Green Card application. However, the U.S. Department of Labor announced new regulations on May 17, 2007, which impose a number of changes in the PERM Labor Certification process. One of the changes made is that the employer is now required to pay all costs related to the filing of the PERM Labor Certification application.
The regulation in question prohibits improper payments. An employer cannot receive payment of any kind for activity related to the PERM Labor Certification application. This includes payment of attorney’s fees and any other costs related to the PERM Labor Certification application. The employer cannot be reimbursed by the worker through a monetary payment or free labor and the employer cannot reduce current or future wage payment to offset the cost of the PERM Labor Certification. Under the regulations, improper payment includes, “monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.” The employer is solely responsible for the all costs of the PERM Labor Certification application. This rule does NOT include attorney’s fees incurred for other parts of the employment based green card application process. It ONLY applies to the PERM Labor Certification portion.
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