Obtaining a green card through your employer is a multi-step process that requires careful planning and attention to detail. For those applying under the EB-3 category, the PERM process is the first and most crucial step toward permanent residency in the U.S. This process, known as the EB-3 PERM Process, involves obtaining labor certification from the U.S. Department of Labor and proving that there are no qualified U.S. workers available for the position. Once the labor certification is approved, the employer files an I-140 petition with USCIS to sponsor the employee for a green card. The journey to securing an employer green card can be complex. With the right guidance, it can lead to successful permanent residency for both the worker and their family.
1) Obtaining “Prevailing Wage Determination” (PWD)
You can complete this process online. Submit an application to the US Department of Labor (“DOL”) to ensure approval of the company and salary.
2) Advertising and Recruitment
The employer must show that, even though they widely advertised the job, they legitimately rejected all U.S. citizens or lawful permanent residents. This needs to be because none were suitable for the position.
The employer must engage in “good faith” recruitment, meaning the process sincerely aims to attract available U.S. workers.
For PERM, there are three required advertisements. The employer must post an ad with the state workforce agency in the state where the job is located.
For example, perhaps your employer is based in Virginia but the job is in Maryland. The ad must publish with the Maryland workforce agency since that’s where the job is located. Additionally, the employer must place ads in a major Sunday newspaper for two consecutive weeks.
The chosen newspaper must have general circulation in the employment area. In the example above, a suitable newspaper could be the Washington Post.
Along with the mandatory ads, for professional positions—those requiring a bachelor’s degree—the employer must place three additional ads and display a job notice at the worksite.
Employers should try to place all advertisements around the same time. The ads must be less than 180 days old when submitting the PERM application. If one ad is older than 180 days, it loses validity. The employer will need to advertise again, potentially delaying the process.
For instance, if the employer receives the prevailing wage determination (PWD) on January 1, 2024, and posts the ads in January but delays placing the final ad until October 2024, the earlier ads become outdated. The employer will then have to repeat the entire process, leading to delays in the green card application.
The employer should ensure that job requirements are specific enough to rule out unqualified U.S. applicants. However, they may still need to interview applicants to verify their qualifications and willingness to accept the role. The employer may not plan to hire anyone from the interview process. However, they must proceed as though the position is genuinely available.
Employers should also note that the Department of Labor (DOL) sets a high standard for the interview requirement. If there’s any chance an applicant could be qualified, it’s safer to conduct an interview than to risk the DOL rejecting the application for not doing so.
3) Filing ETA Form 9089 with the U.S. Department of Labor
After completing the advertisements, and if no qualified U.S. workers apply for the job, the employer can file the PERM application with the DOL using ETA Form 9089. This follows a mandatory 30-day waiting period. This waiting period begins the day after the last advertisement ends. The form must filed 30 days or more after the final ad expired.
Employers submit the ETA Form 9089 online through the DOL’s FLAG website. This form includes details about the job (location, duties, requirements, and wage), the recruitment process (where and when ads were placed), and the foreign worker’s information (birthplace, education, and experience).
After submitting the form, the employer typically waits about a year for the DOL to process the application. The DOL will:
- Approve the PERM,
- Deny the PERM, or
- Audit the application.
If the PERM gets audited, the DOL will request additional evidence from the employer. After the employer responds, the DOL will either approve or deny the application. Audits typically add a few months to the overall processing time.
4) Filing I-140 Immigrant Worker Petition with USCIS based on approved Labor Certification.
Following the PERM labor certification approval, the employer must file the I-140 Immigrant Worker Petition with USCIS. This petition serves to confirm the employer’s sponsorship of the foreign worker for an EB-3 visa. Filing the I-140 is a critical step in the EB-3 PERM Process. It allows the foreign worker to officially enter the queue for their employer green card.
Once submitted, USCIS will review the I-140 petition, and the processing times can vary. Premium processing is available, which expedites the decision to around 15 days for an additional fee. If the I-140 gets approved, the foreign worker is a significant step closer to obtaining a green card.
5) After the I-140 approval: waiting period for Visa to be current in Third Employment Category on Visa bulletins
This could take 1-2 years. After the I-140 approval, the foreign worker must wait for a visa to become available in the EB-3 employment-based category. This step depends on the Visa Bulletin, released monthly by the U.S. Department of State and outlines which priority dates are current. The waiting period for a visa can range from a few months to several years. This depends on the applicant’s country of origin and overall demand in the EB-3 category.
Monitor the Visa Bulletin regularly to know when a visa becomes available. Only then can the applicant proceed to the final steps of the green card proces
6) Filing: Green Cards, Work Permits and Advance Parole documents for Applicant and Spouse (Adjustment of Status to Permanent Residence).
Once a visa becomes available, the foreign worker and their eligible dependents (such as a spouse) can file for Adjustment of Status. This allows them to become permanent residents. You accomplish this by submitting Form I-485 to USCIS, officially requesting a change to lawful permanent resident status. Alongside the I-485, applicants can also apply for Employment Authorization Documents (EADs) and Advance Parole (AP) documents. The EAD allows them to work while their green card application is pending. The AP grants permission to travel abroad and re-enter the U.S. during this time.
After filing the I-485, the foreign worker and their spouse will wait for USCIS to approve their green card applications. When granted this will will officially adjust their status to that of a lawful permanent resident in the United States.
The success of an employer green card application hinges on completing the EB-3 PERM Process. This is the foundation of the employment-based green card journey.