There are three steps to employment-based immigration: (1) the labor certification/PERM; (2) filing for the visa petition; and (3) filing for permanent residency.

Labor Certification/PERM

The labor certification process is the first step in obtaining employment-based permanent residency.  The purpose of a Labor Certification is to demonstrate that there are no minimally qualified U.S. workers available in the area where an alien will work.  In short, the labor certification process tests the local job market.  The Labor Certification will be approved by the USDOL if the following conditions are met: the employer agrees to pay a fair wage for the job offered if and when the alien beneficiary receives permanent residency; that the employer attempted to recruit American workers for the position and was unsuccessful; and that the employer has sufficient income to pay the wage.  Once the employer receives an approved labor certification, it may file for a permanent resident visa or “green card” on behalf of the alien beneficiary.

In early 2005 the USDOL passed new regulations, commonly referred to as “PERM,” revising the labor certification process.  Under PERM, an employer is required to petition the state representative of the USDOL, which in the Chicago area is the Illinois Department of Employment Security (IDES) to determine the fair wage, also known as the “prevailing wage.”  The prevailing wage is based on the average wage paid to workers in the same job with the same experience in the metropolitan area.

Once the prevailing wage is determined, the employer may begin the recruiting phase of the labor certification process.  All recruiting must be completed between 30 and 180 days before the actual Application for Labor Certification is filed with the USDOL.  As part of the recruiting phase for all positions, employers are required to: (1) post a job order with the IDES for 30 days; (2) post two notices at the employer’s place of business for at least 10 working days; (3) post notice of the position on the employer’s intranet – if it is the employer’s normal practice; and (4) place advertisements on two consecutive Sundays with a newspaper of general circulation (i.e. in Chicago, the Chicago Tribune or Chicago Sun Times).  The advertisement must clearly identify the requested position.  Also, the ad must identify the employer and must direct applicants to report or send a resume to the individual who is normally the recipient of such documents for the employer.

For professional positions, the USDOL requires additional recruiting.  Specifically, the employer must also recruit for the position using at least three of the following: (1) a job fair; (2) the employer’s website; (3) a job search website – such as careerbuilders.com; (4) an employee referral program; (5) advertising with a local or ethnic newspaper; (6) on-campus recruiting; (7) placing a job notice with a trade or professional organization; (8) using a private employment firm; (9) using a campus placement office if the position requires no experience; and (10) radio or television advertising.  While only required for professional positions, we highly recommend that employers complete the additional recruiting for all positions.

The recruitment efforts as a whole should support the employer’s case that no other American could perform the job.  During the recruitment period the employer should keep a chart of every recruitment effort it engages in and the outcome of such efforts.  Additionally, the employer has to review each resume that comes in for the position and determine whether any of those candidates would be minimally qualified for the position the employer is obligated to promptly respond to all applicants.  For applicants that are clearly not qualified, the employer may simply send a rejection letter.  However, if there is any question as to whether the candidate meets the minimum requirements, the employer must interview the applicant to determine if he or she is qualified.

At the end of the recruitment employers must be able to document the results of the recruitment in such a way as to show why individual applicants were not qualified for (and therefore not hired for) the position.  Failure to do so successfully will result in the denial of the Labor Certification Application.  Assuming no qualified U.S. workers were identified, the actual Labor Certification Application can be filed 30 days after the recruitment ends.  The application is completed online and should take between 3-6 months to process, although processing times vary greatly.  Please consult us to discuss current processing times.

In addition to completing the online application, employers are required to prepare a recruitment report that describes the recruitment steps taken and the results.  At the conclusion of recruitment, the employer needs to forward to us the internal notices, the original tearsheets from the Sunday newspapers ads, evidence showing all other recruiting steps that were taken (i.e. printouts from job search website, etc.), and copies of all responses sent to applicants.  Once complete, we will return the report and supporting documentation to the employer.  The report and supporting documentation will only be submitted to the USDOL if the certifying officer requests them.  However, PERM requires the employer to keep a signed copy of the report, as well as the supporting documentation, for 5 years.

The Visa Petition

Upon receiving an approved Labor Certification/PERM petition, an employer may file for a visa petition on behalf of the alien beneficiary employee.  This step is normally much easier than the PERM process.  The purpose of the visa petition is to prove to the United States Citizenship and Immigration Service (“USCIS”) that: (1) the job has been certified by the USDOL (through an approved PERM petition), (2) the alien beneficiary meets all of the requirements listed on the PERM petition, and (3) the employer has sufficient resources to pay the alien beneficiary’s salary.  By filing the visa petition the employer represents that the position described in the PERM petition will be available for the alien beneficiary to fill when the petition is approved.

The visa petition includes Form I-140, along with supporting documents.  Specifically, in addition to Form I-140, we need to submit documentation from the employer demonstrating its ability to pay the alien beneficiary’s salary.  This will usually be a federal tax return, or for larger companies, a letter or annual report.  Moreover we need to provide documentation of the alien beneficiary’s education and experience, such as diplomas, transcripts, and letters from previous employers.

Once the visa petition is approved, the alien beneficiary will be eligible to apply for his/her permanent residence.  Each approved visa is given a priority date and classified as either first, second, third (skilled worker or professional), third (other worker), or fourth preference.  The priority date and preference is important because Congress allocates a limited number of immigrant visas per year.  As such, if there are no visas currently available, the alien beneficiary must wait until his/her receipt date is current before filing for his/her permanent residency.  Moreover, there are less first and second preference visas than third preference.  As a result, the priority dates for those preferences are more current.

Prior to October 2005, all categories were current.  However, due to the recent retrogression it is currently taking approximately five years for a priority date in the third or fourth preference to become current.  That being said, there is talk that Congress will pass legislation to cure this problem.

Adjustment of Status or Consular Processing

The last phase in the employment-based immigration process is applying for permanent residence.  Unfortunately, as discussed above, this process cannot take place until the visa petition is current.  If permanent residence is applied for in the United States, it is called applying for “adjustment of status” (“AOS”). If applied for outside the United States, it is called applying for an “immigrant visa” or “consular processing.”  The result of either is the same:  permanent residence.

At the permanent residence application stage, USCIS (or the consular office) will be interested in whether the alien beneficiary has:  (1) been a member of a terrorist organization, the Communist Party, or any similar groups; (2) been arrested or convicted of any crimes; (3) suffered any attacks of insanity; or, (4) lied to obtain a visa, worked in the United States without permission or overstayed her legal status, etc.

The choice between AOS and consular processing is made at the time the alien beneficiary initially files for an immigration visa.  As long as the visa numbers are current (which as of July 2006 they were for first and second preference petitions, as well as Schedule A workers), USCIS allows alien beneficiaries to file the actual AOS application simultaneously with the immigrant visa application.  After drafting the necessary forms, signed originals, along with all supporting documentary evidence (i.e. birth certificate, passport, visa, etc.) are sent to USCIS in order to establish the alien beneficiary’s identity, and prove that his/her presence and employment in the U.S. has been legitimate.  The average processing time for an AOS application is generally 1-3 years, although USCIS recently announced that it will begin testing pilot programs for speedy processing of simultaneously filed petitions.  Additionally, alien beneficiaries have the option of also simultaneously filing applications seeking travel and employment authorization to allow him/her and any dependent family members to travel abroad and work while the AOS application is pending.  Travel and employment authorization applications usually take approximately 3 months for processing.  Once the AOS application is approved, the alien beneficiary will be able to obtain a permanent residence stamp in his/her passport as temporary evidence of this status until the permanent residency card (“green card”) arrives in the mail.

If the alien beneficiary decides to use consular processing, the procedure is as follows.  The National Visa Center in New Hampshire will send him/her a packet of blank forms.  These forms request biographical information and are not very different from the forms used in the AOS context.  Once the forms are completed and originals have been signed, that packet is sent to the Embassy or Consulate.  Normally the alien beneficiary is required to return to his/her home country to await further instructions from the consulate/embassy.  However, if the alien beneficiary has an independent basis to remain the in the U.S. (i.e. an H or L visa), he/she may continue working in the U.S. during the waiting period.  Approximately one month before the alien beneficiary’s interview at the consulate, another packet will be sent to him/her from that office. This packet contains the notice of interview date, information about where to have the medical examination performed (in that country, not in the United States) and other additional materials. At the interview, the alien beneficiary (and all immediate family members who will become permanent residents) will be questioned about the petition.  After the interview, assuming the application for permanent residence is approved, he/she will receive documents to present to the U.S. Immigration Inspector upon reentry to the U.S.  The Inspector will stamp the alien beneficiary’s passport reflecting his/her permanent residence status upon presentation of these documents, and the alien beneficiary will receive his/her permanent residency card (“green card”) in the mail at his/her designated U.S. address.

Alien beneficiaries often ask whether it is possible to pursue both AOS and consular processing simultaneously.  While there is no statutory bar, USCIS takes the position that if a alien beneficiary proceeds with both AOS and consular processing, it will consider the AOS application abandoned.  That being said, an alien beneficiary can switch from AOS to consular processing.  In order to do so, the following must be filed with a consulate: (1) an original notice of approval of the I-140 immigrant visa petition; (2) a copy of the I-140 immigrant visa petition; and (3) a receipt for the I-824 to demonstrate that the applicant has requested consular processing.

Before choosing to proceed with AOS or consular processing it is important for the alien beneficiary to understand the advantages and disadvantages of each option.  In general, most alien beneficiaries prefer AOS.  For one, it tends to be easier and cheaper than consular processing.  Additionally, with AOS, he/she is able to address any discrepancies or problems during processing of the AOS petition by submitting additional evidence and/or explaining any inconsistencies at the personal interview (with our assistance).  Moreover, where the alien beneficiary is seeking an employment based immigrant visa, it is unlikely that you will be subjected to a personal interview.  However, with consular processing all alien beneficiaries are subjected to a personal interview, and all problems must be explained at the personal interview (without the assistance of an attorney).  Other advantages of AOS include the ability to continue working in the United States, and also travel abroad while the petition is processed, even after any applicable nonimmigrant visas have expired.  Moreover, if an AOS application is denied, the alien beneficiary has the right to appeal the decision in a U.S. Court.

The greatest disadvantage with AOS is the lengthy process.  As explained above the entire process can take between 1-3 years depending on the office.  For continuous up to date estimates, please consult USCIS’ webpage.

Conversely, the greatest advantage to consular processing is the relatively shorter period of time needed for processing.  On average the entire process takes 6-8 months.  However, exact times necessary for processing vary per consulate.

Consular processing contains several distinct disadvantages, though, which lead us to recommend against it in most cases.  For one, there is no guarantee that consular processing will actually be faster than AOS, especially now that USCIS is implementing pilot programs to speed up the AOS process.  Further, if the alien beneficiary is already in the U.S., he/she will need to physically travel to the foreign processing post.  It is impossible to predict exactly when he/she will have to travel to the foreign processing post for the interview, thus making it difficult to plan his/her anticipated trip there around the interview.  Also, if the alien beneficiary chooses consular processing, he/she must take additional affirmative steps to obtain certain required information.  For example, he/she must obtain police clearances from every country he/she have spent more than 6 months in since the age of 16 (in AOS, the security clearance is handled by the FBI after fingerprints have been taken) and schedule an appointment for medical examination with the recommended physician in the foreign country.  Furthermore, the alien beneficiary’s legal rights are somewhat more limited at the consulate than at USCIS.  As previously explained, in consular processing there is no right to counsel.  Plus, if the consular officer denies the application, the alien beneficiary has no right to judicial review of that denial, whereas with AOS he/she does.  Finally, if there are any unforeseen problems, there is the possibility that the alien beneficiary will be required to remain abroad until the problems are straightened out.  For those reasons, we typically recommend AOS whenever possible.