With some exceptions, options for a foreign national to obtain lawful permanent resident or green card status can generally be divided into 2 categories: green card via family relationship and green card via employment relationship. Additional categories include by way of investment as well as success in the DV visa lottery.
The most common avenue for obtaining a green card by way of an offer of employment is through an employer’s labor certification or PERM filing.
Firstly, what is PERM? PERM stands for PROGRAM ELECTRONIC REVIEW MANAGEMENT, and is the online application for alien labor certification – an application filed with the U.S. Department of Labor by an employer to facilitate U.S. permanent residence on behalf of a worker. In sum, as set forth in the application, the employer attests to their good faith efforts to recruit U.S. workers for a particular position and that those efforts failed to yield qualified candidates.
The type of recruitment activities required varies with the position at issue. For professional type positions, the mandatory recruitment steps consist of two (2) print ads in a newspaper of general circulation for the city at issue, a 30-day job order with a federal job bank, a Notice of Filing to be posted onsite, as well 3 additional steps from the following list:
1) job fair, 2) employer’s web site, 3) other job search website, 4) on-campus recruitment, 5) trade/professional organization ad, 6) private employment firm, 7) employer’s referral program with incentives, 8) campus placement office, 9) local and ethnic newspapers and 10) Radio/television ad.
For ordinary (non-professional), skilled/unskilled positions, a similar recruitment plan must be employed, although the “3 additional steps” need not be taken.
The U.S. Department of Labor will review the application and will generally issue one of the following responses within 10 to 90 days: 1) an approval, 2) a denial – due to some substantive or technical error in the application, or 3) a notice of audit, with the U.S. Department of Labor stating its intention to review all recruitment activities attested to, and the results of those activities.
Pursuant to regulations, and given the nature of the attestations included in the application, employers must maintain a file documenting their efforts to recruit for the position, and how each of the candidates submitting resumes or applications fell short of the stated requirements for the job. However, it is only in the event of an audit that these efforts will ever be reviewed by a government official.
After a PERM application is approved – and again, that may take only 10 to 90 days, steps 2 and 3 of the immigration process still have to be completed.
Step 2: I-140 – Immigrant worker petition filing with CIS. This filing, among other requirements, involves proving the financial stability of the petitioning employer, and the employee’s qualifications to fill the position. Processing time is usually 90 to 180 days.
Step 3: Permanent residence processing via adjustment of status (for those already in the U.S.) or consular processing (for those residing overseas). This is where the big wait can generally take place since the parties do not reach this step until “visa availability” is established. For most workers, who are categorized as Employment Based Third Preference or “Other Workers”, the wait between steps 2 and 3 is approximately 1-3 years. For those qualifying for the Employment Based First or Second Preference, by virtue of their “extraordinary abilities” or graduate university degree (or equivalence), there is no wait between steps 2 and 3 – (excluded from the discussion are Chinese and Indian nationals who are subject to longer waits due to visa demand from these countries). Thus, cases that qualify for EB 1 or 2, may get completed in less than 1 year. Those that do not, may involves processing times of 3 or 4 years, or more.
Additional notes: if the worker is in the U.S., he/she will be eligible for adjustment of status only if they are in lawful immigrant status, OR if out of status, they are covered under Section 245(i) (where, in general, they had been the subject of a family-based or employment based petition or labor certification application submitted prior to April 30, 2001).
Lastly, the above discussion does not pertain to many other types of workers, including registered nurses, physical therapists, religious workers, international corporate managers/executives, professional athletes, foreign national’s of “extraordinary ability” or who are lending their talents deemed in the “national interest”– all of whom are generally exempt from the requirement of proving the unavailability of U.S. workers. These types of workers are included in separate immigration categories and subject to different rules.
Other non-family relationships or vehicles that can lead to green card issuance include a foreign national’s investment of more than $1,000,000 USD as well as being picked as a successful Diversity Visa lottery entrant.
Given the complexities at play with regard to all of the above avenues to U.S. lawful permanent resident or “green card” status, it is highly recommended that seasoned immigration counsel, such as Richard Hanus of the Law Offices of Richard Hanus is consulted. That way a prospective U.S. immigration applicant is able to sort fact from fiction and obtain the most realistic evaluation of their chances of success with any given option.