Obtaining Permanent Residence Through a Job Offer and Permanent Labor Certification

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An American business that desires to fill a job vacancy with a foreign worker can use the immigration laws and procedures to qualify the foreign worker for an immigrant visa.¹ The foreign worker might already be working for the American business with a temporary non-immigrant work visa such as the H, L, J, F, or E visas, or the foreign worker might be a long time employee that the company’s management wants to help obtain resident status.

The immigration laws provide for several employment-based immigrant visa classifications. Most of the classifications have built-in protections for American labor. Employment-based immigration generally requires either a strong showing that the foreign worker is one of the best in the field or that there are no qualified United States workers² available to fill the position.

Approximately 28% of the annual allotment of employment-based immigrant visas are allocated to a classification referred to as the “third preference”, which is further split into three subcategories: Professionals (baccalaureate degree required for position and alien); Skilled Workers (at least two years of experience required); and Other Workers (less than two years’ experience required for position). The Other Workers classification is further limited to 10,000 visas per year. Therefore, there could be a backlog in this classification if more than 10,000 people apply. There are also annual limits on how many individuals can apply from one country. Therefore, there could be backlogs for persons that come from countries that historically have large numbers of applicants such as India and the Peoples Republic of China.

The third preference requires that the U.S. Department of Labor (DOL) makes a determination and certifies that there are not sufficient United States workers who are able, willing, qualified, and available for the position being offered, and that the employment of the foreign worker will not adversely affect the wages and working conditions of United States workers similarly employed³. The application is often referred to as the permanent labor certification application or labor certification. The rules that govern the application process are referred to as PERM⁴.

The American business, prior to the application being prepared and submitted, must make a effort to recruit applicants for the offered job. The recruitment efforts include two ads placed on different Sundays in a newspaper of general circulation in the area of intended employment, notices posted at the place of employment, a job order with the State Workforce Agency, and in-house recruitment that is normal to the business. When the offered job is for a professional additional recruitment must be undertaken. Three of the following recruitment steps must be done: job fairs, employer’s web site, job search web sites, on-campus recruiting, trade or professional organization, private employment firms, an employee referral program if it includes incentives, notice posted with a campus placement office, local and ethnic newspapers (if appropriate for the job offer), and radio and television advertisements.⁵

The American business must offer the job at the prevailing wage. This is a wage that is viewed by DOL to be the fair wage paid to workers in similar positions in the area of intended employment. The wage is obtained from the State Workforce Agency.

Any United States worker that applies for the position should be contacted to confirm that he or she is able, willing, qualified, and available for the position being offered. This may often require arranging an interview for the applicant. If no United States workers meet the requirements for the position then the application for permanent labor certification can be prepared and submitted to the DOL. The American business affirms that ten conditions were met prior to submitting the application⁶

Once the application is submitted it is difficult to change any information or requirements. The information in the application also serves as the basis of a petition that is filed with the US Citizenship & Immigration Service to qualify the foreign worker in the third preference. It is very important that the application be properly drafted and any documentation, such as diplomas, academic evaluations or letters of experience be reviewed in advance.

Of course, this is an over simplification of the process. The duties of the position, the location of the job opportunity, the wording of the advertisement, the application for the prevailing wage, the interviewing process, all have legal requirements and subtle points that can make a difference when applying for DOL’s certification. The attorneys at Tasoff & Tasoff have many years of experience in the application process and receive regular updates on the law, regulations and interpretations of the permanent labor certification process. We spend considerable time understanding the foreign worker’s educational background and experience and the requirements of the job offer. We may spend hours talking to the foreign worker, the employer, researching the law and occupational standards and guidelines. The attorneys will advise and assist the American business in the recruitment and application process. However, we cannot interview applicants and determine their eligibility for the position.⁷

The advice and representation that Tasoff & Tasoff provides extends to both the American business and the foreign worker. This dual representation is common within the area of immigration law, but we are very aware that the American business and the foreign worker may have different interests and concerns. In such situations there is always the possibility of conflict. Prior to beginning any work we ask that both the American business and foreign worker review and sign a disclosure notice and consent form.

Upon receipt of the DOL’s certification a petition for foreign worker is filed with the US Citizenship & Immigration Service along with documentation about the American business. The documentation must include proof that the business has the ability to pay the prevailing salary to the foreign worker. We often request tax records for smaller companies to satisfy this requirement.

If the foreign worker is in the United States on a temporary non-immigrant visa, or if they otherwise qualify by regulation, the foreign worker and his or her family⁸ can apply for adjustment of status with the regional service center of the US Citizenship & Immigration Service. If the foreign worker is not in the United States, or does not qualify for adjustment of status, then the foreign worker and his or her family applies for immigrant visas at the appropriate American Consulate in his or her home country. The rules of who may apply where and who may not are intricate.

If an adjustment of status application is filed the US Citizenship & Immigration Service will issue an employment authorization document to the applicant and his or her family members. The foreign worker and his family may remain in the United States and work until the US Citizenship & Immigration Service has made a decision on the petition and application for adjustment of status. Travel may also be possible but only with a special document issued by the US Citizenship & Immigration Service.

Assuming the foreign worker and his family members are qualified (no serious criminal or deportation record, fraud, etc.), the US Citizenship & Immigration Service may grant the adjustment of status application, or the American Consul will issue an immigrant visa.

Tasoff and Tasoff can represent American business anywhere in the United States since the law, regulations and procedures are national in scope. The firm’s attorneys are committed to handling matters competently and diligently and in accordance with the standards of the profession. The attorneys will keep you informed and provide you with copies of important papers. The attorneys will exercise independent professional judgment and conduct themselves in accordance with the ethical rules of the State Bar of California.

If you have questions about the obtaining permanent residence through a employment-based category or any other question regarding immigration or our services please feel free to call.