Employers must jump through certain hoops to offer work to United States immigrants. For example, with few exceptions, companies are required to first obtain a labor certification from the U.S. Department of Labor in order to sponsor a foreigner for permanent residence (“green card”) based on an offer of employment.
Certifying the Labor Certification Application
As part of the labor certification process, the employer must prove to the U.S. Department of Labor (DOL) that it made a good faith effort to recruit a U.S. worker to fill the offered position, and that the results of the recruitment effort did not result in finding a qualified, willing, and able U.S. worker who met the minimum requirements for the offered position. The employer must also indicate the wages and working conditions for the position in which the foreign worker will be employed.
The Program Electronic Review Management (PERM) program reviews applications once they are submitted. PERM may request additional information, but the application may also be approved without further investigation as well. The DOL may also conduct an audit in conjunction with the application. For example, DOL may inquire as to the business necessity of particular required education or experience related to the position.
The Visa Petition
Once the DOL certifies the labor certification (PERM) application, the next step is to begin the remaining stages of the green card application on behalf of the employee. The USCIS handles these actions. The form that the employer submits is referred to as Form I-140. In this form, the employer specifically requests a particular type of immigrant visa category based on employment. Naturally, the sponsored foreign worker must also meet the qualifications for the employment-based category being sought.
By submitting Form I-140, the employer indicates that it can pay the salary offered to the potential employee, the actual job offer, and that the sponsored worker possesses the required qualifications for the position. The USCIS also evaluates the employee to ensure that he or she actually does possess the necessary skills, education, and experience required for the job.
As part of the visa petition process, the employee will indicate whether he or she will apply for permanent resident status while in the U.S. or an immigrant visa at a US Consulate outside the U.S. Both choices will allow the employee to become a permanent resident of the United States, along with his or her spouse and unmarried children under the age of 21.
Getting Legal Help as an Employer or Worker
Employees and employers work together to move through the labor certification process. Nonetheless, the entire procedure can be very confusing and a bit overwhelming for both parties. Having an experienced immigration lawyer to help you through the process can be an invaluable resource. Call our team today for more information.
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