There are several ways to obtain lawful permanent residence in the United States, commonly referred to as a ‘green card.’ The most common method of obtaining permanent residency is through an employer who sponsors a labor certification (EB-1, EB-2, or EB-3). The labor certification, or PERM, process is the first of a three-part green card process.
The sponsoring company or organization is directly involved in the first two steps:
- Labor certification or “PERM” (Form ETA 9089, filed with the Department of Labor)
- Form I-140, Petition for an Immigrant Worker, filed with USCIS (Department of Homeland Security)
If the labor certification is certified, it allows the employer to file for an immigrant visa number through Form I-140. The final step in the process is the adjustment of status to lawful permanent residence, which requires the foreign national to file several forms to demonstrate their eligibility and admissibility for lawful permanent residence in the United States.
Employment-based immigration falls into three different categories generally:
- EB-1 (priority workers covered here)
EB-2 and EB-3 are procedurally identical processes that involve the labor certification, I-140 and adjustment of status.
General Qualifications for EB-2 – second preference (Members of the Professions Holding an Advanced Degree or Persons of Exceptional Ability):
- Are a member of a profession that requires an advanced degree, or
- Have exceptional ability in the sciences, arts, or business, or
- Are seeking a national interest waiver.
Qualifications for EB-3 – third preference (Skilled Workers, Professionals, or Other Workers):
- A skilled worker (ie., your job requires a minimum of 2 years training or work experience), or
- A professional (i.e., your job requires at least a U.S. bachelor’s degree or a foreign equivalent and you are a member of the profession), or
- An unskilled worker (meaning you will perform unskilled labor requiring less than 2 years training or experience)
- Even if a foreign national possesses an advanced degree, the labor certification and I-140 category will not necessarily be considered EB-2. EB-2 and EB-3 categories are based on the employer’s minimum requirements for the position that the foreign national will hold.
The goal of the labor certification process, which is adjudicated by the Department of Labor and not DHS or USCIS, is to make sure that foreign workers are not taking jobs from qualified U.S. workers and that if employed, the foreign worker will not adversely impact the wages or working conditions of other U.S. workers in the same occupation. The employer must be prepared to hire the foreign national on a full-time and permanent basis, and there must be a bona fide opening.
When an employer files a labor certification, they must demonstrate:
- the company will pay the prevailing wage as determined by the Department of Labor (based on the occupation, the level of experience or education required for the position, and the specific geographical location of the job);
- a good faith effort was made to recruit U.S. workers;
- no U.S. workers were willing, qualified, able or available to accept the position at the wage for the occupation in the location of employment;
Additionally, the company or organization must show that the minimum requirements to perform the job and responsibilities are not unduly restrictive, or “tailored” to the foreign national. If the requirements for the position are not considered normal for the occupation, the Department of Labor will require the employer to demonstrate why it is a business necessity.
If during the mandated process of recruiting for the position with the company a qualified and available U.S. worker applies for the job and meets the minimum requirements outlined by the employer, the labor certification cannot be certified by DOL.