By Carolyn Fuchs

Overview

Permanent Residency ("green card") status is often sought by an employer to permit an employee - as well as any visa-dependent family members - to have the ability to reside indefinitely in the US. All work visas are temporary, and most are limited by law to five to seven years. Usually, spouses and children may not work if they hold dependent status. Children cannot remain in dependant status after age 21, even if they reside with their parents. Also, US citizenship can usually only be sought after holding permanent resident status for five years. It is important to note that the employee may not have any other option to obtain a green card aside from the Labor Certification (or "PERM") process. Given the finite time that work visas are valid and the very lengthy green card process, it is important that an employer timely assess the need for this process in order to retain key employees beyond the work visa's final expiration date.

The Perm Process

Labor Certification is the first part of a three-step, multi-year process, to obtain permanent residency for an employee. Some employees may be exempt from the PERM process - for example, those who have extraordinary ability, outstanding researchers and professors, managers or executives who have previously worked for a related company outside the US, or those whose work can be shown to be in the national interest.

However, for most employees, a labor certification from the US Department of Labor (DOL) finding that there are no qualified "US workers" (US citizens or green card holders) for the position is required. The DOL regulations for PERM require that an employer follow a fixed recruitment program, including newspaper advertising, state job bank listing, and worksite posting. In addition, the employer must choose another three forms of recruitment: job fairs, employer website, employee referral programs, job search websites, on-campus recruiting, campus placement offices, trade or professional organizations, search firms, local and ethnic newspapers, and radio/television ads.

The DOL also requires that the employer utilize a specific job description with specific minimum requirements at a specific salary for the PERM recruitment. The minimum requirements must not be deemed "overly restrictive" by the DOL under its job criteria formulations, and must be consistent with the employer's hiring practices. The Department of Labor may request evidence from the employer to prove that the job requirements are the actual minimum requirements for the position and that the employer has not hired other workers with lesser qualifications for the position. During the course of the recruitment program, the employer must interview any applicant who is a US worker who appears to meet the minimum requirements for the position. The employer must also document the reasons for the rejection of any applicant based solely on stated minimum requirements. Even if a qualified "US worker" applies, the employer is not required to offer the applicant the job. The PERM application cannot, however, be approved.

Document Retention and Audits by Department of Labor

Under the DOL rules, all PERM documents, including proof of the recruitment, statements documenting the reasons for applicant rejection, resumes, and justification of requirements which exceed the DOL's standards must be retained by the employer for a period of five years from the filing of the PERM application. When a PERM cases is filed by the employer, the employer, or its attorney, completes an online application detailing the position and recruitment, but does not submit any documents. Initially, the DOL projected that decisions would be issued within 45-60, but in practice, cases may take many months in excess of this time frame. The DOL also intended to audit around 20 percent of the cases, but is now is now auditing almost 50 percent of all cases filed. An audit will also add many months to the process. In an audit, the DOL requires the employer, within 30 days, to submit some or all of the documents listed above, as well as any other proof deemed relevant to compliance with the PERM rules. Failure to comply with these rules may result in additional, supervised recruitment, denial of the application and, in cases involving serious violations, may bar the employer from the PERM program. Given these negative outcomes, strict compliance with the PERM rules and impeccable record-keeping throughout the process is crucial.

Quotas and Maintaining an Employee's Work Authorization during Lengthy Processing

After the Labor Certification has been approved, the employer must file the second step, a Petition for an Immigrant Worker with the US Citizenship and Immigration Services (USCIS). The employer will select a quota category based on the educational level required by the position, some categories are current, and others have backlogs of many years. The employer will have to show proof of ability to pay the wage as well as the employee's eligibility for the quota category by submitting educational and job experience documents.

If quota numbers are available, the employee and family members can concurrently file applications for permanent residency, the final step in the process. Whether the employee is able to file the permanent residency application depends on when a quota number is available in the quota system administered by the Department of State (DOS). Every month, the DOS issues a Visa Bulletin that shows the availability of quota numbers according to each category. An employee's place in a specific quota category depends on several factors, including the employee's country of birth and the filing date of the PERM application, or priority date . An applicant cannot file the third step, the permanent residency application, until the priority date is reached in his or her quota category.

As a result of quota backlogs, natives of certain countries, which have used up their quota, are not eligible to file concurrently for a green card with the USCIS. At this time, some quota categories are current and others are backlogged up to seven years. If an employee falls into a backlogged category, he or she cannot file a permanent residency application, and if eligible, must extend their temporary work authorization to continue working in the US, until the category becomes current. Unfortunately, there may be other bureaucratic delays throughout the process. In addition to the quota backlogs or just USCIS delays in processing, some employees have found their applications in administrative limbo because of security checks.

Depending on the timing, it is not always possible to extend the work visa until the employee's quota number is available or until permanent residency is granted. It is important for employers to consult with immigration counsel to understand and comply with the overall process to maximize the chances that the employee is able to maintain work authorization throughout this lengthy and complex process.

Molly Carey helped prepare this article.

Carolyn Fuchs has practiced immigration law in Boston since 1979 and has extensive experience representing employers in immigration matters, including before the Departments of Homeland Security, State, Labor and US consular offices throughout the world.

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