The Immigration and Naturalization Act (INA) allows a United States (U.S.) employer to hire foreign nationals to permanently work in the U.S. when there are no minimally qualified workers available. This process starts with a labor certification that is filed with the U.S. Department of Labor (DOL). Once the DOL approves the labor certification, the immigration process seeking lawful permanent (LPR) status –or green card- may be filed with Citizenship and Immigration Services (CIS). Employers and foreign employees wishing to obtain their LPR status through a labor certification must know that this process is lengthy, sometimes up to ten years depending on the category assigned. The process to obtain a labor certification was modified on March 28, 2005. Any labor certification filed on or after March 28, 2005, is subject to a process called Labor Certification for the Permanent Employment of Aliens, commonly known as “PERM.”
A labor certification or PERM must be filed with DOL electronically or by mail. Only the employer can file this petition on behalf of the alien. The new PERM regulations establish harsh sanctions for attorneys or persons who do not follow these rules. The PERM process is full of datelines and procedural requirements such as company’s in-house notifications, job advertisements, and job announcements among others. Most of the procedural requirements must be complied with before filing the actual labor certification petition –ETA form 9089. It is highly advisable that employers hire an immigration attorney to help them processing a labor certification. According to the PERM process, a labor certification can be approved in 45 days once submitted to DOL. In practice, the whole process may take up to 14 months.
Once the labor certification is approved, the employer may start the immigration process in which the employer petitions for the alien. This petition is filed on form I-140, which must be filed within six months after the approval of the labor certification. If the I-140 is not filed within these six months, a new labor certification petition must be filed and the one approved becomes useless. CIS has strict requirements for the approval of I-140s; these requirements include submission of the approved labor certification, some immigration forms, evidence of the employer’s ability to pay the salary, other relevant evidence, and an application fee. The I-140 process may take up to one year or more if CIS requests additional evidence. If the I-140 is denied, the employer may appeal. If the employer does not appeal, the process concludes with no benefit for the alien. If the I-140 is approved, the alien may apply for his LPR status –form I-485 when his/her category becomes current. A category becomes current when the priority date shows that there is a visa immediately available for that alien. The priority date is determined by the date in which the labor certification. CIS assigns four categories for the employment-based immigrant visas: (1) priority workers. These are aliens with extraordinary ability in the science, arts, education, business, or athletics, outstanding professors and researchers, and certain multinational executives and managers; (2) professionals holding advanced degrees, or persons of exceptional ability in the science, arts, or business; (3) skilled workers in short supply, professionals holding baccalaureate degrees, and other workers in short supply; (4) certain special immigrants such as religious workers. To understand when a person with an I-140 approved can apply for LPR status it is very important to consult an immigration attorney because this is a very legal technical issue.
Immigration attorney Martha L. Arias can help companies prepare and file petitions for labor certifications. Call us for an online or office consultation. The labor certification issue is very complex and requires a case-by-case analysis. Those who have a labor certification filed or approved before April 30, 2001 are protected under section 245(i) of the Immigration and Naturalization Act (INA). These people should contact attorney Martha L. Arias so she can analyze your case.